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THE 



Municipal Law 

OF INDIANA, 



INCLUDING 



THE GENERAL SCHOOL LAW, GENERAL ELECTION LAW, TAX 
LAW, AND ALL STATUTES OF THE STATE APPERTAINING 
TO CITIES AND TOWNS; WITH NOTES OF DECIS- 
IONS, AND A COMELETE LIST OF FORMS. 




BY W. W. THORNTON, 

OF THE INDIANAPOLIS BAR, 

AUTHOR OF STATUTORY CONSTRUCTION, JURIES AND INSTRUCTIONS, LOST WILLS, 
AND ONE OF THE EDITORS OF INDIANA ANNOTATED CODE, ETC. 



6-3 S-^ X 



W. H. ANDERSON & CO, 

CINCINNATI, I 89 I. 



si 






COPYRIGHT BY 

W. H. ANDERSON & CO. 

189I. 



PREFACE. 



THIS book occupies almost a new field in our State. Twenty years 
ago Wild's small work on the Municipal Corporations of Indiana 
was published. There are many lawyers who never saw it, and many 
more who have forgotten it. Indiana decisions were then small in 
number, and but few forms were used in that work; consequently it 
was little more than a compendium of the statutes. In the twenty 
years since its publication a multitude of decisions have been rendered 
by our courts, containing almost innumerable points of practice relative 
to municipal corporations. It has been my endeavor to gather up 
these points, place them in order, and to bring all the decisions of our 
courts down to the latest date, many of them being at the time of 
writing only in manuscript. 

Forms have been drafted and placed under the sections to which 
they appertain. That this will be of great aid to municipal officers 
and to members of the profession the author, from his past experience, 
feels assured. The task of drafting them was not a small one. Many 
of them have stood the test of the courts. 

The general school, election, and tax laws are made applicable to 
municipalities by statutes, and they naturally occupy a part of this volume. 
Here the forms have been omitted for the reason that such forms as are 
necessary are furnished by the State and Counties. 

The school law of the State has been published for several years by 
the Superintendents of Public Instruction, with notes of the decisions 
of the Supreme Court, (many of which the writer, several years ago, 
prepared for that official,) and containing comments of the several 
officers who have held the office of Superintendent, and also those given 
to that officer by the Attorney-Generals of the State. These official 



IV PREFACE. 

opinions have been retained, and due credit given to the authors of 
them. No opinions of the present incumbents of those two offices, or 
their immediate predecessors, have been used, for the reason that none 
of them at the time of writing had been pubhshed in an official edition 
of the school law. 

Inquiry and experience has taught the writer that a wide divergence 
in the practice of officers of towns exists in this State; and such being 
the case, he can not help running counter to the accepted notions of 
practice and proceedings in some of our towns. By a careful scrutiny 
of the laws he has arrived at the conclusions stated in this work, and 
from careful study believes them to be correct, whatever may be the 
opinion entertained or practice followed by others. Upon these points 
of dispute he does not expect to pass uncriticised. 

The plan adopted in this work is that followed in the Revised 
Statutes of 1881, 

The writer is under obHgations to Hon. William L. Taylor, four 
years City Attorney of Indianapolis, for many valuable suggestions, and 
for a number of approved forms; and to the author and pubHshers 
of '-'Coppock's Annotated Ohio Municipal Code" for a number of 
valuable notes. 

W. W. Thornton. 
Indianapolis, Ind., September i, 1891. 



CONSTITUTIONAL PROVISIONS. 



The Municipal Law of Indiana 



CHAPTER I. 
CONSTITUTIONAL PROVISIONS. 



1. Bill of Rights. 8. Education. Schedule of Constittition. 

2. Suffrage aud Elec- 10. Fi7iance. 

tiojts. 11. Corporations. 

4. Legislative. 13. Municipal Debt. 

6. Administration. 15. Miscellaneous. 

7. judicial. 

ARTICLE I.— BILL OF RIGHTS. 

SEC. 

66. Compensation for service. 

[R. S. 1852, p. 33, Took effect November i, 1851.] 

Sec. 66. Compensation for service. No man's particular services 
shall be demanded without just compensation. No man's prop- 
erty shall be taken by law without just compensation ; nor, except 
in case of the State, without such compensation first assessed and 
tendered. 

1. This section does not prohibit the seizure of a corporation's franchises 
for a violation of its charter, let the eii'ect upon private property be what it may, 
I B. 267; nor the change of a county seat, i B. 285; even though a court-house 
was donated by the citizens of the place from which it is removed, 4 B, 208. 
(The constitution of 1816 did not require that damages be first assessed or ten- 
dered, 4 B. 505; 5 B. 384; 8 B. 246, 266.) Land may be taken for a canal; or 
for " hydraulic works" propelling mills and factories; or to build mills or fac- 
tories, 8 B, 266; grading a street, 6 Ind. 237; vacating streets, 7 Ind. 38; build- 
ing a railroad in the street, 7 Ind. 479, 522; or crossing a turnpike, no Ind. 
5; or taking land for a railroad, 7 Ind. 711; 27 Ind, 260; or a street, 19 Ind. 
326; or a turnpike, 23 Ind. 623; 26 Ind. 53; or plank-road, 26 Ind. 53; water- 
works, 41 Ind. 364; telegraph line, 52 Ind. 67; for a ditch, 103 Ind. 486; for a 
railroad in the street, 34 Ind. 304; 74 Ind. 29; 48 Ind. 178; 7 Ind. 479; 9 Ind. 
467; but this section does not apply to consequential damages, 6 Ind. 237 (see 
9 Ind. 433); 19 Ind. 326. See § 3073, note; § 3170, 7iote; nor to the taxing 
power, () Ind. 74; 29 Ind. 305; 53 111. 105; 57 111. 130; 94 111. 604 ; (but street 
assessments is not the taxing power, 34 111. 203); nor to witness fees in a crim- 
inal case, 8 Ind. 467; nor service rendered by otBcers in such cases, 21 Ind. 32; 
nor to regulation of rates for telephone companies, 105 Ind. 250; nor to laying 
a street railroad in the street, 78 Ind. 261. 

2. Land, or materials, taken for a public hightvay is taken for the State, 
and need not be paid for before taking, 11 Ind. 420; but land can not be taken, 
even if paid for, for o. private road, 43 Ind. 455; 25 la. 540; 34 Ala. 311; 39 111. 
no; 27 Mo. 373; 24 Wis. 89; 4 Hill (N.Y.) 140. 



§ 66] CONSTITUTIONAL PROVISIONS. [2 

3. This section does not prescribe the mode of ascertaining the damages or 
compensation to be paid, i Ind. 48; 62 111. 38. Therefore the method prescribed 
by an act for ascertaining damages must be followed in the way pointed out by 
it, I Ind. 285. No other can be pursued, 4 Ind. 431; and the way pointed out 
must be strictly followed, 7 Ind. 711; but see 9 Ind. 123; and no property can 
be taken except as allowed by statute, 47 111. 463. The time within which to 
apply for compensation may be limited; and if none is applied for within that 
time, none thereafter can be obtained, 4 Ind. 431. If no statute has been passed 
authorizing the assessment of damages, then the owner of land taken may sue 
directly for all damages he has suffered by reason of the seizure of the land, 
9 Ind. 433; 7 Ind. 479. Or he may enjoin the taking, 100 Ind. 206; 23 Ind. 623. 

4. An act authorizing payment in or tender of anything but legal tender 
is unconstitutional, 8 B. 246 (see 8 B. 337). 

5. "The amount of damages allowed for taking land is the value of the land 
taken at the time of the seizure (not at the time of the trial, 8 Ind. 74), less 
the amount the complainant's adjoining land had been increased in yalue by the 
location of the proposed works. He is entitled to be recompensed for all the 
actual injury he may sustain — all circumstances considered — by the measure of 
which he complains, 84 Ind. 496; 7 B. 209; 5 B. 384; 118 111. 206; iii 111. 283; 
70 111. 347. 

6. This section does not confer the right to take, but recognizes it, 97 
111. 506; it limits the right, 34 111. 203; there is no restraint to the extent the 
right may be given by the legislature, so long as the property is taken for pub- 
lic use, 23 111. 202, and not private, 87 111. 317; 7 111. App. 474. 

7. Until the damages are assessed according to law and paid or tendered, 
the title does not vest in the person procuring its condemnation, 80 111. 482; 7 
111. App. 460; but damages may be paid by benefits accruing to the person dam- 
aged, 51 111. 63; 62 111. 38; 66 111. 510; 38 111. 322. 5 B. 384; 84 Ind. 496. 

8. An assessment for improvements to lots on the basis of frontage can 
not be made, because of its manifest inequality, 34 111. 203; 40 111. 211; 41 111. 
306. See 94 111. 604. 

9. The phrase " private property " includes the right of user and enjoy- 
ment of the property, 19 111. App. 67. What is a "just compensation " involves 
the determination of a judicial question, 61 111. 115; 59 111. 286. 

ADDITIOXAL XOTE. 

10. The particular purpose for which the power of eminent domain shall 
be exercised, rests entirely with the legislature, 4. O. S. 308; 98 U. S. 403; 116 
111. 449; 58 Mo. 175. The power having been granted, the grantee is vested 
with the determination whether it shall be exercised, and when and to \vhat ex- 
tent, within the power, 22 Minn. 372; 116 111. 449. The power must be strictly 
pursued, {defect in notice), 11 O. S. 219; 34 Mich. 36; 23 W. Va. 203; {defect in 
petitioti for), 16 La. Ann. 393; {proceeding by resolution instead of ordinance), 
33 N.J. L. 72; {improper recomme?idation board), y8 Mo. ^1; {insufficieiit des- 
ignation of land), 10 Gray, 40. Only proof of fraud, or bad faith, or that the 
property is intended to be used for purposes other than that for which it is ap- 
propriated, -will warrant the interference of the courts, 19 O. S. 308; 4 O. S. 299. 
Under the principle of strict construction, ^vhere the estate taken is not defined, 
only such an interest can vest under proceedings as is necessary to accomplish 
the purpose of the appropriation, 68 N. Y. i, 591; 10 Kas. 603; 125 Mass. 226. 

11. Streets. A municipal corporation Avhich has appropriated property once 
and neglected to take possession, may exercise the power a second time after 
six months, 42 O. S. 239; it may appropriate the necessary easement for a slope 
for a fill, but the owner is not entitled to compensation as for the fee, 34 O. S. 
267. Street or highway is a public use, although wholly to afford access to 
church or cemetery, 33 Ind. 80; 63 Pa. St. 471; and may accommodate but one 
family, 22 Vt. 44; "15 Ark. 43; 5 Graft. 265; 61 la. 89; 64 Id. 198; and may be 
merely a cul-de-sac, 12 Kas. 17; 56 Wis. 429; 87 111. 189; 3 Keys 35; and may be 
merely to accommodate pleasure-seekers; 11 Allen 530; 35 N. H. ^34. 



3] BILL OF RIGHTS. [§ 66 

12. The following i.ses of streets are held to be legitimate and not to re- 
quire additional compensation: for sczvers a7id drains, 21 O. S.499; 2 C. S. C. R. 
462; 30 Mich. 24; 13 Allen, 146; 28 Conn. 362;/"6»r tt'rt/er-/'//^?^, 29 Hun. 245; 27 
Id. 72; for gas-fifes, 90 N. Y. at p. 161; 32 Vt. 367; for layijig subterranean 
-vires and setting poles and stringijig ivires for lighting by electricity, 65 How. 
Pr. 407; iS Jones & S. 464; 51 lb. 280; Contra, 9 Bull. 65; for street railways, 
14 O. S. 524; 35 Cal. 325; 125 Mass. 515; for setting poles for electric street 
railzvays, 3 O. C. C. 425; for cisterns for sprinkliiig streets and extinguishing 

fires, 32 Vt. 367; for statuary and in07iuments, 2 Hun. 146. 

13. The following are held to require compensation: for telegraph and 
telephone lines, 2 O. C. C. 259; 42 N.J. Eq. 141; 107 111. 507; 11 Abb. N.C. 440; 
Contra, 136 Mass. 75; 88 Mo. 258; for public markets, 15 Fla. 306; 34 N.J. L. 
201; 5 Porter (x\la.) 279; for public pounds for strays or for jail, 15 Fla. 306; 
63 N. H. 605; for railroads, 40 O. S. 496; 38 O. S. 41 ; 3 O. S. 330. 

14. Markets. Property taken for, is for public use, 28 Hun. 515. But a 
street can not be used for, without compensation, 34 N. J. L. 201. Illegal erec- 
tion of, may be enjoined, 29 Alb. L.J. 201; 6 Bull. 142. 

15. Parks. A public use, 45 N. Y. 234, even though located only in the 
vicinity of a city or town, 58 Mo. 175. Property may be taken on side of an 
avenue to be kept open for ornament, 48 Barb. 9; and parks may be laid out 
over grounds used by a railroad, but use therefor can not be interfered with 
without special authority, 63 Barb. 282. General authority to layout a railroad 
does not authorize its location through a park, 53 N. Y. 574; 20 Hun. 201; 16 
Pick. 87. 

16. Gas-vjorks and -ivater-works. A public use, 62 Cal, 182; 63 Barb. 437^ 

17. School-houses and grotcnds. A public iuse, 68 Pa. St. 170; and ground 
sufficient for yard may be taken, 33 Vt. 271. 

18. Cemeteries. A public use when the right of burial is public and gen- 
eral, or when it is controlled by the public authorities; 20 Conn. 466; 103 Mass. 
106; 46 Vt. 218; 43 Conn. 234. And it is no objection that the privilege of 
burial must be paid for, 53 Conn. 551. But an association can not exercise 
the power and vest the title in it and lot owners, as private property, 53 Conn. 
551; 66N.Y.569. 

19. Validity of latv. An act is constitutional which provides that persons 
who claim damages by an appropriation of private property for public use, shall 
file claims for damages in a certain way within a specified time, or be held to 
have waived the same, 19 O.S. 173; 22 O. S. 275; 24 O. S. 467. If the statute 
provides that the claim shall be made in writing, the right to compensation will 
be deemed waived, if verbal claim only is made, 24 O. S. 467. The rule requir- 
ing the claims to be filed is not in the nature of a statute of limitations, whereby 
a right secured by the constitution is barred, or of a statute declaring a forfeit- 
ure, but is a declaration of a rule of evidence, by which a waiver of compensa- 
tion maybe established, 22 O. S. 275. 

20. Right of action. The owner of a lot abutting vipon an improvement, 
who files his claim as provided by law, is entitled to recover for any property 
actually destroyed by making the improvement, as hedges, fences, gates, and 
the like, 10 Rec, 705. The consequential injury to access is in the nature of a 
taking, and may be recovered for in Ohio, i O. C. C, 558. The owner may re- 
cover damages to an unimproved lot, if an unreasonable grade is made in front 
of it, 7 O.S. 469. He may recover if he has improved his lot with reference 
to a regularly established grade, and such grade has been changed to his 
injury, 15 O. 474; 18 O. 229; 7 O. S. 469; i Bull. 125; 12 Lull. 246; or if he 
has improved with reference to the grade of u public highway, as an " old road," 
or a " county road," or a " turnpike," aiJ such grade is changed to his injury, 
7 O. S. 469; 30 O. S. 133; 10 Rec. 705. He may likewise recover where he 
has improved before any grade has been established, if he anticipates a reason- 
able grade to Avhich the street is built, and the grade is afterwards changed 
to his injury, 34 O. S. 328; or, if an unreasonable grade is established in the 
first instance. Ibid. But there can be no recovery for injury to an unimproved 
lot by the change of an existing to another reasonable grade, 7 O.S. 469; or 
v.-here improvements have been made without reference to any existing grade 



§ 66] CONSTITUTIONAL PROVISIONS. [4 

and a reasonable grade is established, 35 O. S. 328. Neither can he recover for 
a mere change of grade to his injurj, if his lot does not abut on the improve- 
ment, I C.S.C.R, 154; 16 O.S. 163. The establishment of a grade by public 
authority is not conclusive of reasonableness, but is a fact to be considered in 
determining whether it is reasonable or not, 3 O. C.C. 593. Corporation, after 
establishing a grade, must proceed within a reasonable time to conform the 
street to it, or it will be held to have abandoned it, and property owner may 
build with reference to previous grade, and may recover damages if previous 
grade is changed, 3 O. C. C. 503. 

21. T/ie measure of damages caused by a change of grade is the diminu- 
tion in value of the premises occasioned by the change — how much less valuable 
were the premises immediately after the change, than they were immediately 
before, 119 Mass. 372; 108 Mass. 60; yoGa. 611; 52 la. 303, 560; 50 Wis. 78. This 
may be arrived at, { i ) by direct testimony as to the value before and after the 
change, 83 111., 535; 12 la. 437; but a witness may not give his opinion that the 
property has been damaged, or as to the amount of damage, 31 Wis., 512; 12 
la., 437; 5 O.S. 573; or (2) by showing what it would necessarily cost to adjust 
the premises to the new grade, by grading off, 113 Mass. iii; 31 Wis., 512; by 
filling up, 49 Wis. 584; 50 Wis. 78; by constructing retaining, 22 Minn 527, or 
protecting walls, 122 Mass. no; re-adjusting drains, 10 Rec. 705; or raising im- 
provements, etc., 61 la. 187. But such items can not be recovered specifically — 
they are simply a means of ascertaining the loss in value, 21 111. App. 93; 10 
Rec. 705. If a local incidental benefit be derived by means of restoration, this 
should be considered as an oft'set against damages ascertained by means of the 
cost of restoration, 10 Rec. 705. Extra expense in business during the progress 
of an improvement, such as storage and drayage, and extra labor, do not tend 
to prove diminution in value, and can not be shown, 12 Bull. 247. If the owner 
is not allowed damages by the jury, his only remedy is by error, or appeal; he 
can not enjoin the improvement, 31 O. S. 621; 12 Kas. 17; 82 Ind. 24; 7 la. 
416. 

22. Rights of actio7i not covered by the statute. If the corporation con- 
structs an elevated viaduct in a street which occupies the greater part thereof, 
whereby the premises of an owner who abuts the street, but not the viaduct, are 
damaged, such owner may recover for the injury, 43 O. S. 190. Such person is 
not an owner of a lot "bounding or abutting upon the proposed improvement," 
and is not required to file a claim for damages under a statute requiring such 
an owner to file a claim for them. Ibid. The laying of a street railway so 
near the sidewalk as to obstruct the convenient access to an improvement made 
wath reference to the grade of a highway, is an injury for which compensation 
must be made, 14 O. S. 163. And although the owner has access to the part of 
the street immediately in front of his premises, he will be entitled to damages 
if he is obstructed in his passage from that part, to the portion traveled by the 
public by an elevated trestle, 8 Bull. 15. An owner Avhose lot does not abut 
upon a street Avhich is being graded may recover damages to his la7id by re- 
moval of the lateral support in grading such street, 38 O. S. 141 ; and he may re- 
cover for damages to buildings, or other artificial structures, if the work be done 
negligently, 38 O. S. 141; 8 Bull. 25; 21 O. S. 499. 

■ 23. Where a statute provides for the assessment of damages when the par- 
ties can not agree, an attempt to agree is a condition precedent to the exer- 
cise of the power of appropriation, 28 Cal. 662; 29 Mich. 77; 32 Mich. 283; 47 
Mo. 474, 479; 36 N.J. L. 499; and inability to agree must be alleged and proven, 
33 O. S. 429. For what is a sufficient attempt to agree, see 53 Mich 442; 5 W. 
Va. 382; 82 N. Y. 196; 67 N. Y. 37. If property is owned "hy persons under a 
disability who cannot agree, no attempt need be made, 20 Ind. 9; 103 Mass. 106. 
Construction of a railroad in a street before right to construct has been acquired 
fromadjoiningproperty owners, may be enjoined by such owners, 38 O, S.41 ; and 
it is immaterial whether the fee ot the street is in the city or in the abutting own- 
ers, Id. There can be no recovery from the municipality for permitting the vise 
of the street for railway purposes, 41 O. S. 207. In an action by the adjoining 
owner for damages, he is entitled to recover full compensation for the deprecia- 
tion in the value of his property, 45 O. S. 309; 40 O. S. 496; 35 O. S. 284; 33 O. 
S. 429. And when such compensation is made, he will be estopped to deny that 



5] SUFFRAGE AND ELECTIONS. [§§ 83 — S6 

the occupation is without his consent, 12 Bull. 214; 21 Fed. Rep. 309. The meas- 
ure of damages in such action is the difference in value of the property affected, 
before and after the location of the road, 45 O. S. 309; and upon this question 
testimony as to injury from smoke, noise, and sparks is competent. Id. ; but 
testimony as to diminution of rents, and opinions as to amount of damages, and 
as to " the difference in yalue of the property with the track in the street and if 
it was some other place" is incompetent, 33 O. S. 439; 45 O. S. 309. 



ARTICLE 2— SUFFRAGE AND ELECTIONS. 



STEC. 




SEC. 


53. Elections free. 

54. Qualincations of electors, 

55. Soldiers — Seamen — Marines. 

56. Residence. 

57. Briberv a disqualification for office 

58. Challenge to duel. 




89. Disfranchisement, 

90. Effect of holdino- lucrative offices. 

91. Defaulters not eligible. 

92. Pro tempore appointments. 
03. Electors free from arrest. 
94. Method of election. 


[R. S. 1S52, p.33. 


Took 


effect November i, 1851.] 


Sec. 83. Elections free. 


I. 


All elections shall be free and 


equal. 







Sec. 84. Qualifications of elector?. 2. In all elections not other- 
wise provided for by this constitution, every male citizen of the 
United States, of the age of twenty-one years and upward, who shall 
have resided in the State during the six months and in the township 
sixty days, and in the ward or precinct thirty days, immediately 
preceding such election, and every male of foreign birth, of , the 
age of twenty-one years and upwards, who shall have resided 
in the United States one year, and shall have resided in this 
State during the six months, and in the township sixty days, 
and in the ward or precinct thirty days, immediately preceding 
such election, and shall have declared his intention to become 
a citizen of the United States, conformably to the laws of the 
United States on the subject of naturalization, shall be entitled to 
vote in the township or precinct where he may reside, if he shall 
have been duly registered according to law. [As amended March 
14, 1881.], 

Previous to 1881 a law requiring^ a twenty days' residence and registration 
was declared unconstitutional, 35 Ind. 485; 39 Ind. 598. A registry law must 
be applicable to all classes of electors, 125 Ind. 281. 

Sec. 85. Soldiers — Seamen — Marines. 3. No soldier, seaman, 
or marine, in the army or navy of the United States, or of their 
allies, shall be deemed to have acquired a residence in the State, 
in consequence of having been stationed within the same ; nor shall 
any such soldier, seaman, or marine have the right to vote. 

See § 4682. 

Sec. 86. Eesidence. 4. No person shall be deemed to have lost 
his residence in the State by reason of his absence, either on busi- 
ness of this State or of the United States. 

See § 4683. 

5. [Abrogated March 14, 1881.] 



§§ ^7 9^] CONSTITUTIONAL PROVISIONS. [6 

Sec. 87. Bribery a disqualification for office. 6. Every person 
shall be disqualified for holding office during the term for which he 
may have been elected, who shall have given or offered a bribe, 
threat, or reward to secure his election. 

Sec. 88. Challenge to duel. 7. Every person who shall give or 
accept a challenge to fight a duel, or who shall knowingly carry to 
another person such challenge, or who shall agree to go out of the 
State to fight a duel, shall be ineligible to any office of trust or 
profit. 

Sec. 89. Disfranchisement. 8. The general assembly shall have 
power to deprive of the right of suffrage, and to render ineligible, 
any person convicted of an infamous crime. 

See § 4681. 

Sec. 90. Effect of holding lucrative offices. 9. No person hold- 
ing a lucrative office or appointment under the United States, or 
under this State, shall be eligible to a seat in the general as- 
sembly ; nor shall any person hold more than one lucrative office 
at the same time, except as by this constitution expressly permit- 
ted: Provided, That officers in the militia, to which there is at- 
tached no annual salary, and the office of deputy postmaster, 
where the compensation does not exceed ninety dollars per an- 
num, shall not be deemed lucrative ; And provided, also, That 
counties containing less than one thousand polls may confer the 
office of clerk, recorder, and auditor, or any two of said offices, 
upon the same person. 

An office to which there is attached a compensation for services rendered is 
a lucrative office, 44 Ind. 401; S. C. 15 Am. R, 239. Its lucrativeness does not 
depend upon the amount of compensation affixed to it, 8 B. 329. The following 
offices have been held to be lucrative offices, viz.: reporter of the supreme 
court, 19 Ind. 351; recorder and commissioner of a county, 8 B. 329; town- 
ship trustee and postmaster, 105 Ind. 221; township road supervisor, 14 Ind. 
182; major (20 Ind. 103) and colonel in the volunteer service <j|f the United 
States — such offices are not offices in the militia, 19 Ind. 351; and major of a 
city and director of a state prison of this State, 35 Ind. iii. This section does 
not apply to a councilman of a city, so as to prevent him holding another office, 
44 Ind. 401 ; S. C. 15 Am. R. 239; nor to a member of a committee of the legis- 
lature, authorized to sit after adiournment and audit claims, receiving a per diem 
pay while so auditing them, 16 Ind. 497; nor prohibit the president of the 
board of trustees for the hospital for the insane, the asylum for the blind, 
and the institution for the education of the deaf and dumb, drawing a salary 
as such president and another salary as trustee of such three several institutes, 
116 Ind. 300. If an officer who holds a lucrative office accepts another lucrative 
office under the laws of the State, such act of acceptance is a vacation of itself 
of the first office, 8 B. 329; 14 Ind. 182; 16 Ind. 368; 19 Ind. 351; 20 Ind. 103, 
35 Ind. iii; 56 N. H. 220; 96 111. 420; 64 Me. 195; 77 Va. 328; except where 
such prior office is one held under the Federal Government, in which event the 
incumbentmust resign it if he desires to retain the state office, 105 Ind. 221 ; S.C. 
55 Am. R. 197; isCal. 117. See 11 R.I. 638; S.C. 23 Am. R. 538; 53 Tex. 387; 
67 N. Y. 456; 3 Nev. 566. 

See § 159. The office of school trustee of a city or town is a lucrative 
office, and a person holding it can not be a trustee of the deaf and dumb insti- 
tute. 26 N. E. Rep. 893. 



7] LEGISLATIVE. [§§ pl H^ 

Sec. 91. Defaulters not eligible. lo. No person who may here- 
after be a collector or holder of public moneys shall be eligible 
to any office of trust or profit until he shall have accounted for 
and paid over, according to law, all sums for which he may be 
liable. 

The disqualification must exist at the time the term of office begins, the right 
of the claimant not being effected hy the fact that at the time of his election htt 
was ineligible. The action to test his right to the office can not be brought 
before the term of office begins, 122 Ind. 113; 90 Ind. 294; 107 Ind. 374. 

Sec. 92. Pro tempore appointments. 11. In all cases in which it 
is provided that an office shall not be filled by the same person 
more than a certain number of years continuously, an appointment 
pro tempore shall not be reckoned a part of that term. 

Sec. 93. Electors free from arrest. 12. In all cases, except 
treason, felony, and breach of the peace, electors shall be free from 
arrest in going to elections, during their attendance there, and in 
returning from the same. 

See § 46S4. 

Sec. 94. Method of election. 13. All elections by the people 
shall be by ballot ; and all elections by the general assembly, or 
by either branch thereof, shall be viva voce. 

ARTICLE 4.— LEGISLATIVE. 

SEC. SEC. 

iiS. Local la^vs forbidden. iig. Laws must be general. 

[R. S. 1852, p. 33. Took effect November i, 1851,] 

Sec. 118. Local laws forbidden. 22. The general assembly shall 
not pass local or special laws in any of the following enumerated 
cases, that is to say : 

Regulating the jurisdiction and duties of justices of the peace and 
of constables ; 

For the punishment of crimes and misdemeanors; 

Regulating the practice in courts of justice ; 

Providing for changing the venue in civil and criminal cases ; 

Granting divorces ; 

Changing the names of persons ; 

For laying out, opening, and working on, highways, and for the 
election or appointment of supervisors ; 

Vacating roads, town plats, streets, alleys, and public squares ; 

Summoning and impaneling grand and petit juries, and provid- 
ing for their compensation ; 

Regulating county and township business ; 

Regulating the election of county and township officers, and 
their compensation ; 

For the assessment and collection of taxes for state, county, 
township, or road purposes ; 



§§ 119, 15^] CONSTITUTIONAL PROVISIONS. [8 

Providing for supporting common schools and for the preserva- 
tion of school funds ; 

In relation to fees or salaries ; except that the laws may be so 
made as to grade the compensation of officers in proportion to the 
population and the necessary services required. [As amended 
March 14, i88i.] 

In relation to interest on money ; 

Providing for opening and conducting elections of state, county, 
or township officers, and designating the places of voting ; 

Providing for the sale of real estate belonging to minors or other 
persons laboring under legal disabilities, by executors, adminis- 
trators, guardians, or trustees. 

Sec. 119. Laws must be general. 23. In all the cases enumer- 
ated in the preceding section, and in all other cases where a general 
law can be made applicable, all laws shall be general, and of uni- 
form operation throughout the State. 

See § 212, note 2. The only clause of § 118 that applies to cities is the 
following: "Vacating roads, town plats, streets, alleys, and public squares." 
When a statute, not falling under § 118, falls under § 119, it is for the legislature 
and not the courts to determine whether it violates the latter section, 118 Ind. 
426; III Ind. 152; and although a law passed may apply, by reason of its limi- 
tation to cities of a certain size, to only one city in the State, yet it is valid and 
not void as violating the above two sections, 118 Ind. 426; iii Ind. 152; so a 
law is valid which applies only to cities acting under a special charter, 30 la. 
232; 37 la. 462. Legalizing taxes not authorized by charter was held invalid in 
Iowa, 60 la. 500; 62 la. 303. See 39 la. 112. 



ARTICLE 6.— ADMINISTRATION. 

SEC. SEC. 

156. Residence of city or town officers. 159. Vacancies, how filled. 

158. Impeachment ofcounty officers. 

[R. S. 1852, p. 33. Took effect November i, 1851.] 

Sec. 156. Residence of city or town officers. 6. All county, 
township, and town officers shall reside within their respective 
counties, townships, and towns; and shall keep their respective 
offices at such places therein, and perform such duties as may be 
directed by law. 

1. This section applies both to town and city officers; the word "town" is 
generic and comprehends cities, 118 Ind. 449, 462; 24 Ind. 286; 119 Ind. 481. 

484. 

2. A city or town officer must reside in the town or city in which he holds 
his office at the time of his election or appointment; and if,' during his term, he 
ceases to reside in the town or city, he thereby abandons and forfeits his office. 
Having once abandoned the office by ceasing to reside in such town or city, he 
can not afterwards resume it (4 B. 116; 21 Ind. 516; S. C. 83 Am. D.367.) If 
an officer leaves his place of residence temporarily, on business or otherwise, 
but with the intention of returning, he does not thereby lose or change his resi- 
dence, nor abandon his office. In such an instance there is no intention to lose 
or change his residence, which intention is essential in order to make his ab- 
sence have that effect. Going to Washington, D. C, and procuring an appoint- 
ment as assistant doorkeeper of the House of Representatives, but leaving a 



g] JUDICIAL. [§§ 158 — 176 

deputy in charge of his office, his family at his place of residence, returning 
during the adjournment of Congress and superintending the business of his 
office, paying his poll tax, voting and claiming his residence thereat -was held 
not to amount to abandonment of his residence. Appointing a deputy and 
leaving the office in his charge, is not alone such a non-user or mis-user as to 
work a forfeiture of the office by the person holding it. The general rule is that 
-where a man is at the head of a family and is a house-keeper, it will be pre- 
sumed that the residence of his family is his own residence. A mere intention 
to change his residence without an actual removal, is not sufficient to effect a 
change, 27 Ind. 236; 17 Fla. 389; 50 Ark. 266; S. C. 7 S. W. Rep. 161. A stu- 
dent, merely because he is going to a college, does not acquire a residence there 
because of that fact, 113 Ind. 148; 76 Me. 148; S. C. 49 Am. R, 606; 10 Mass. 
48S; 5 Met. 5S9; 71 Pa. St. 302; S. C. 10 Am. R. 698; 53 la. 246, S. C. 36 Am. 
R. 216. Aside from this section of the constitution, an officer may abandon 
his office, or by parol may resig^i it, and the existence of a vacancy in either 
case Avill depend upon all the facts and circumstances. Voluntarily going into 
the army was held to be an abandonment of the office of auditor of a county; 
and an act of the legislature permitting an officer to enlist in the army and to 
retain his office was held unconstitutional, 21 Ind. 516; S. C. 83 Am. D. 367. 
A mere temporary absence from the State to procure medical treatment, 33 La. 
Ann. 870; or to engage in business for a limited time, 8 Bush (Ky.) 560; 17 
Neb. 59S; or on pleasure, 26 La. Ann. 568; S. C. 21 Am. R. 551; 3 Neb. 409, S. 
C. 19 Am, R. 634, will not amount to an abandonment. 

3. The legislature can not authorize any town or city officer, except the 
mayor, to eyLercise judicial fo-jjer^ 106 Ind. 345, 357. 

Sec. 158. Impeachment of county officers. 8. All state, county, 
township, and town officers may be impeached or removed from 
office, in such manner, as may be prescribed by law. 

See §§ 3101,3278. This section applies to officers of a city, ii8 Ind. 449, 462; 
24 Ind. 286; 119 Ind. 481,484. It is the duty of the legislature to make provi- 
sion for the removal, for just cause, of all town and city officers. Such an officer 
can only be removed for some specified neglect or violation of duty imposed or 
defined by law, 119 Ind. 481, 484. 

Sec, 159. Vacancies, how filled. 9. Vacancies in county, town- 
ship and town offices shall be filled in such manner as may be pre- 
scribed by law. 

This section applies to cities, the word "town " being generic, iiS Ind. 449, 
462; 119 Ind. 481, 484; 24 Ind. 286. For vacancies in city offices see § 3050; 
alderman, § 3053 ; councilman, § 3043 ; town offices, § 3312 ; town marshal, 
§ 3326 ; school trustees, § 4439. 



ARTICLE 7— JUDICIAL. 

SEC. SEC. 

175. Conservators of the peace. 176. Ineligibility of judges and ma^-ors to 

other offices. 

[R. S. 1852, p. 33. Took effect November i, 1851.] 

Sec. 175. Conservators of the peace. All judicial officers shall be 
conservators of the peace in their respective jurisdictions. 

This section applies to the mayor of a city. See § 3062. 

Sec. 176. Ineligibility of judges and mayors to other offices. 16. 

No person elected to any judicial office shall, during the term for 
which he shall have been elected, be eligible to any office of trust 
or profit under the State, other than a judicial office. 



§ 1 82] CONSTITUTIONAL PROVISIONS. [lO 

The may -^r of a city being a judicial officer can not be elected to and accept 
during his official term the office of director of our state penitentiary, 35 Ind. 
iii; nor the office of clerk of the circuit court, 14 Ind. 93; nor sheriff of the 
county, 12 Ind. 570. But he may be elected to a non-judicial office during his 
term, if the term of the office to which he is so elected commences after his term 
as mayor expires, 90 Ind. 294; 107 Ind. 374; 122 Ind. 113; but if his terra of 
office as mayor expires the same day the term office to which he is elected be- 
gins, the election is void, 107 Ind. 374. A person elected mayor, who does not 
accept the office, may, during the time for which he was elected, be elected to 
and accept a non-judicial office, 90 Ind. 294. A mayor can not' resign his office 
and then accept and hold, during the remainder of his term, a non-judicial office, 
15 Cal.117; 3 Nev. 566. Votes cast for a mayor for a non-judicial office are 
void and can not be counted in order to defeat his opponent. In such an in- 
stance, if his opponent is the only candidate against him and receives any votes 
whatever, he is elected, although such mayor receive a majority of all the votes 
cast, 107 Ind. 374; 100 Ind. 489; 81 Ind. 558; 35 Ind. iii; 15 Ind. 327; 14 Ind. 
93; 12 Ind. 569. One holding the office of a justice of the peace may resign and 
accept the office of clerk of a city or town during the time for which he was 
elected such justice, 52 Ind. 599. 



ARTICLE 8— EDUCATION. 

SEC. SEC. 

182. Common schools. 186. Re-investment. 

1S3. Common school fund. 1,87. Counties — Liability. 

184. Principal, a perpetual fund. 1S8. Trust funds inviolate. 

185. Investment and distribution. 1S9. Superintendent of Public Instruction. 

[R. S. 1852, p. 33. In force November i, 1851.] 

Sec. 182. Common schools, i. Knowledge and learning, gen- 
erally diffused throughout a community, being essential to the pres- 
ervation of a free government, it shall be the duty of the general 
assembly to encourage, by all suitable means, moral, intellectual, 
scientific, and agricultural improvement, and to provide, by law, 
for a general and uniform system of common schools, wherein tui- 
tion shall be without charge, and equally open to all. 

1. See § 4325, notes. Schools a state iyistittition. Under our former consti- 
tution we had had two systems of common schools, the general and the local, 
and the local had broken down the general system, and neither had flourished. 
This was an evil distinctly in the view of the convention which framed the new 
constitution, and it was determined that the two systems should no longer co- 
exist; that the one general system should continue, strengthened by additional 
aids, and that the counteracting local system should go out of existence. ^ * 
Common schools as a whole are made a state institution — a system co-extensive 
with the State, embracing within it every citizen, every foot of territory, and all 
the taxable property of the State, 10 Ind. 76 and 77; 5 Ind. 557. 

2. General. Our common school system must be general, that is, it must 
extend over and embrace every portion of the State, 48 Ind. 358. 

3. Uniform. It must be uniform. This will be secured when all the schools 
of the same grade have the same system of government and discipline, the same 
branches of learning taught, and the same qualifications for admission, Id. 359. 

4. Classification. The schools must be equally open to all. But the legis- 
lature may classify the pupils to be admitted, with reference to age, sex, advance- 
ment, and branches of study to be pursued; and may designate to what schools 
and vv-hat school-houses the different ages, sexes, and degrees of proficiency shall 
be assigned. Id. 360. 

5. Colored fupils. To require the white and colored children to be taught 
separately, provision being made for their education in the same branches, 
according to age, capacity, or advancement, with capable teachers, does not 



Il] EDUCATION. [§ 183 

amount to a denial of equal privileges to either, or conflict with the open char- 
acter of the system required bv the constitution, Id. 362. See § 4496. 

6. This section does not require the legislature to levy all school taxes, nor 
prohibit it from providing by a general law, for the levying of school taxes by 
the local school authorities, 102 Ind. 307. 

7. Legislaiive poxver. The legislature is given full power under this sec- 
tion to provide for a general and uniform system of common schools, and such 
power necessarily resides in it, although it is not given by the constitution. It 
may prescribe the course of study and the system of instruction that shall be 
pursued and adopted, as well as the hooks which shall be used, 122 Ind. 462. 

Sec. 183. Common school fund. 2. The common school fund 
shall consist of the congressional township fund, and the lands be- 
longing thereto ; 

The surplus revenue fund ; 

The Saline fund, and the lands belonging thereto ; 

The bank tax fund, and the fund arising from the one hundred 
and fourteenth section of the charter of the State Bank of Indiana ; 

The fund to be derived from the sale of county seminaries, and 
the moneys and property heretofore held for such seminaries ; from 
the fines assessed for breaches of the penal laws of the State, and 
from all forfeitures which may accrue ; 

All lands and other estate which shall escheat to the State for 
want of heirs or kindred entitled to the inheritance ; 

All lands that have been or may hereafter be granted to the 
State when no special purpose is expressed in the grant, and the 
proceeds of the sales thereof, including the proceeds of the sales 
of the swamp lands granted to the State of Indiana by the act of 
Congress of the twenty-eighth of September, one thousand eight 
hundred and fifty, after deducting the expense of selecting and 
draining the same ; 

Taxes on the property of corporations that may be assessed by 
the general assembly for common school purposes. 

1. See § 4325. CotisoUdafion void. In so far as this section attempts to 
consolidate the congressional township fund with other funds, it is inoperative. 
The provisions of the school law of 1852, which were designed in pursuance of 
this section to effect such consolidation are in contravention of the subsequent 
section 7, and of the congressional grant to the townships, 6 Ind. S3; 94 U.S. 792. 

2. Sale of seminaries void. The provision authorizing the sale of county 
seminaries is void as impairing the obligation of contracts, 19 Ind. 407; 20 Ind. 
39S- 

3. Penalties. The fact that a penalty under § 6339 for making a false tax 
list is to be paid into the county treasury for the use of the county does not 
bring the statute into conflict with this section of the constitution, as stxch 
penalty is not a fine in the sense of the v/ord as there used, 108 Ind. 132. So 
the statute turning over certain fines assessed for immorality to the hovie for 
friendless -women is valid, § 6243; 50 Ind. 215. 

4. Escheated real estate — Estrays. Under this section it is "the fund to be 
derived from the sale of escheated real estate,'''' and not such real estate itself, 
which becomes a part of the common school fund, 63 Ind. 33. So money aris- 
ing from the sale of estrays and property taken adrift belongs to the school 
fund by force of the act of 1844, p. 86, andR. S. 1881, § 235; 92 Ind. 353, § 4325^?. 

5. See § 4325, notes. 



§§ 184 1 88] CONSTITUTIONAL PROVISIONS. [l2 

Sec, 184. Principal, a perpetual fund. 3. The principal of the 
common school fund shall remain a perpetual fund, which may be 
increased, but shall never be diminished ; and the income thereof 
shall be inviolably appropriated to the support of common schools, 
and to no other purpose whatever. 

Xotc. See § 1S7. Xot a penny of the principal of the school fund can 
be used for anv purpose, 120 Ind. 2S2. Therefore a statute making the state- 
ment of the county auditors as to the amount of school funds held in trust by 
their respective counties, Avhen approved by the superintendent of public in- 
struction, " conclusive evidence of the facts therein contained," is unconstitu- 
tional, 120 Ind. 282. 

Sec. 185. Investment and distribution. 4. The general as- 
sembly shall invest, in some safe and profitable manner, all such 
portions of the common school fund as have not heretofore been 
intrusted to the several counties ; and shall make provision, by 
law, for the distribution, among the several counties, of the in- 
terest thereof. 

The ^vord " invest" is construed as broad enough to cover loans made by the 
counties, and that the fund mav be intrusted to them for that purpose : and 
yet, while covering the loan of money, it does not restrict to that mode of in- 
vestment, 37 Ind. 122. 

Sec. 186. Re-investment. 5. If any county shall fail to demand 
its proportion of such interest for common school purposes, the 
same shall be re-invested for the benefit of such county. 

Sec. 187. Counties — Liability. 6. The several counties shall 
be held liable for the preservation of so much of said fund as may 
be entrusted to them, and for the payment of the annual interest 
thereon. 

1. Rents. A county is liable for rents derived from unsold congressional 
township land, 44 Ind. 38. 

2. Actioji. An action may be sustained in the name of the State on the 
relation of the board of county commissioners, to recover rents received by a 
township trustee for the lease of unsold school lands belonging to the i6th sec- 
tion^ and not paid by such trustee into the county treasury, 44 Ind. 38 ; 94 U. 
S. 792. And the trustee is liable on his official bo?id, with ten per cent, dam- 
ages, Id. 

3. Object. Money derived from the rent of unsold school lands belonging 
to the 1 6th section is \o be paid into the county treasury, to insure its just and 
equitable distribution to the inhabitants of the congressional township in which 
such section lies, 44 Ind. 38. 

4. Policy of lavj. It is the policy of the school law that all school funds 
are to be distributed to the beneficiaries thereof through and fi'om the county 
treasury to the proper officers of the various school corporations, cities, towns, 
and school townships, 44 Ind. 38. 

5. See § 4326, notes. 

Sec. 188. Trust funds inviolate. 7. All trust funds held by the 
State shall remain inviolate, and be faithfully and exclusively ap- 
plied to the purposes for which the trust was created. 

I. Expense. The constitution requires the counties to bear the expense of 
managing ih.Q school fund, 103 Ind. 497; 65 Ind. 176, 184; 90 Ind. 359; 116 Ind. 
329- 



13] FINANCE. [§§ 189 198 

2. Action. An action lies against a co2inty for money paid out of the school 
fund to the officers for managing such funds, 103 Ind. 497. 

3. Settlement. The settlement between the board of commissioners and a 
county auditor, or other county officer, does not conclude the State from main- 
taining an action to recover school funds unlawfully paid to an officer by the 
board, 103 Ind. 497; 106 Ind. 270; 116 Ind. 329, 531. 

4. Statute of limitations. The county in receiving and disbursing the 
school fund acts as the trustee of a direct trust, and against such a trust the de- 
fence of the statute of limitations cannot be interposed, 103 Ind. 497; 106 Ind. 
270. 

5. Counsel. A county may legally employ counsel to protect its funds, but it 
must pay him out of the general county fund and not out of the school fund, 
116 Ind. 329. 

6. Gra-nt ivas a contract. The sixteenth, sectioji in the several congressional 
townships of this State was granted by Congress to the inhabitants of such 
townships respectively, for the use of the schools therein and not elsewhere; 
and the grant was accepted by the State on the terms in which it was made. 
By the sale of such section in such townships under the act of Congress of 
182S, the proceeds became a trust fnnd^ to be applied for the use of schools in 
such townships respectively, and not elsewhere. The fact that at the time of 
the grant there were no inhabitants in the township does not change the rule or 
result, nor can a repeal by the legislature of the act creating congressional 
towmships affect the validity of the grant by Congress of such section in those 
towmships to the inhabitants for the use of schools therein, nor give the State 
any better right than it otherwise would have had to divert the funds derived 
from the sale of such section. The grant was a contract executed and incapable 
of revocation by the legislature. The school laiv of 18 52 ., so far as it diverted 
the proceeds of the sale of the sixteenth section in the several congressional 
townships from the use of schools in such townships respectively to the use of 
the school system of the State at large, was held unconstitutional, 6 Ind. 83; 7 
Ind. 570, 636; 22 How. 56; but the school law of 1855 was held valid, 7 Ind. 570, 
630. 

Sec. 189. Superintendent of public instruction. 8. The general 
assembly shall provide for the election, by the voters of the State, 
of a state superintendent of public instruction, who shall hold his 
office for two years, and whose duties and compensation shall be 
prescribed by law. 

See § 4406. 

ARTICLE 10— FINANCE. 

SEC. SEC. 

193. Assessment and taxation. 198. State can not assume city or town's in- 

debtedness. 

[R. S. 1852, p. 33. Took effect November i, 1851.] 

Sec. 193. Assessment and taxation, i. The general assembly 
shall provide, by law, for a uniform and equal rate of assessment 
and taxation, and shall prescribe such regulations as shall secure a 
just valuation for taxation of all property, both real and personal, 
excepting such only, for municipal, educational, literary, scientific, 
religious, or charitable purposes, as may be specially exempted by 
law. 

See § 6269, notes. 

Sec. 198. State can not assume city or town's indebtedness. 6. 

No county shall subscribe for stock in any incorporated company. 



§212] CONSTITUTIONAL PROVISIONS. [14 

unless the same be paid for at the time of such subscription, nor 
shall any county loan its credit to any incorporated company, nor 
borrow money for the purpose of taking stock in any such com- 
pany ; nor shall the general assembly ever, on behalf of the State, 
assume the debts of any county, city, town, or township, nor of 
any corporation whatever. 

The legislature may authorize a city or town (or township, 94 Ind. 13; 65 
Ind. 457) to subscribe for stock in an incorporated company of a public nature 
(as a railroad, 34 Ind. 185) upon credit, and to borrow money to pay for the 
same, 9 Ind. 74. Unless expressly authorized by a statute, a city or town can 
not subscribe for stock, 22 Ind. 88, 508; 51 Ind, 325; 32 Ind. 244. i Dill. Munp. 
Corp. § i6i. See § 3152, notes. 

ARTICLE II— CORPORATIONS. 



SEC. 

212. General laws. 

[R. S. 1852, p. 33. Took effect November i, 1851.] 

Sec. 212. General laws. 13. Corporations, other than banking, 
shall not be created by special act, but may be formed under gen- 
eral laws. 

I. See §§ 118, 119. The word " corporations " applies to cities and towns; 
and the legislature can not now incorporate a town or city, nor pass an act for 
the incorporation for a particular town ; but it may modify the charter of a 
town or city granted previous to the adoption of the present constitution, io6 
Ind. 129, 131. This power is expressly reserved by the constitution. § 235, 
clause 4. 

2. The constitution of Ohio [Art. 13, § 6] provides that "the general as- 
sembly shall provide for the organization of cities and incorporated villages, by 
general laws." * * * The general assembly, assuming to act under this pro- 
vision, passed an act dividing all cities " into two classes, first and second," and 
provided that "cities of the first class are divided into three grades — first, sec- 
ond, and third; cities of the second class are divided into four grades — first, 
second, third, and fourth." [Smith & Benedict's Rev. Stat, of Ohio, 1890, § 1546.] 
This classification was held valid, and not in conflict with the clause of the con- 
stitution quoted, 29 O. S. 102; 3iO.S.,592; 39 O. S. 653; 44 O.S. 137, 247. Of 
this clause of the constitution a writer of that State has said: " The difficulty of 
legislation according to classification is found in avoiding the restrictions of 
Art. 13, § I, and Art. 2, § 26. The test as to whether an act is a special act, 
conferring corporate power, within the inhibition of Art. 13, § i, is found in 
the potentially general quality of its provisions. If at the time of its passage it 
applies to all the corporations in the class for which it legislates, and in the 
future any other corporation Avhich may lawfully come into that class can have 
the benefits of its provisions, it is not special, although at the time of its pas- 
sage but one corporation is in the specified class, 34 O. S. 228; 39 O. S.653; 41 
O.S. 476; 43 O.S. 98; 44 O.S. 98; /(f. 137; 7(^.247. An act may be made spe- 
cial by designating a corporation by name, 8 Neb. 178, or the number of inhabi- 
tants at a specified census, or other time, 29 O. S. 102; 31 O. S. 592; 42 O. S. 437; 
44 O.S. 247; or by containing stipulations which only one corporation can per- 
form Avithin a time designated, 43 O. S. 98; or by providing for issue of bonds 
to pay existing deficiencies in class where there is but one city, 13 Bull. 614; or 
by extending powers of existing corporation over other contiguous corporations 
or territory, 20 O. S. 18. But an act conferring power Avhich would be corporate 
power, if conferred on a corporation, is not special legislation, if power is con- 
ferred on a board which is not a corporation, ( Trustees of Sozcthern Raihvay) 
21 O. S. 14; {Board of Hospital Trustees) 23 O. S. 434; ( Trtistees of Sitikiug 
Fufid) 42 O.S. 437; {Board of Police Commissio7iers appointed hv Governor 
or Court) 29 O. S. 102; 38 O. S. 455. The test of a law of a general nature 



15] MUNICIPAL DEBT. [§ 220 

which shall have a uniform operation throughout the State as required bj Art. 
2, § 26, of the constitution, has not been definitely fixed by the supreme court, 
34 O.S. 23S. The character of its subject matter, whether all the citizens of 
the State have therein a common interest, has been suggested as controlling, 
6 O.S. 269; but this has been thought insufficient, as subjects of general interest 
may have peculiar local application, 34 O.S. 228; and Avhen they have, laws of 
a general nature may be constitutionally passed which, under proper classifica- 
tion, have only a local effect. An act relating to a specified class may be one of 
a general nature, {Cincijinati Police Act) 29 O.S. 102; 44 O. S. 137; 38 O. S. 
455; {Cinciiifiati Granite Pavement Act) 14 Bull. 87, affirmed in S. C. without 
report; (Section 11 of Doxv Law) 3 O.C.C. R. 168; 20 O. S. 308. And it may 
«tf/, 42 O.S. 628." 

3. For our own State, see 118 Ind. 426, and iii Ind. 152. See also 41 O.S. 
481. 

ARTICLE 13— MUNICIPAL DEBT. 

SEC. 

220. Limited — Excess void. 

[Acts iSSi, p. 29. Took effect March 14, 1881.] 

Sec. 220. Limited — Excess void. i. No political or municipal 
corporation in this State shall ever become indebted, in any man- 
ner or for any purpose, to an amount, in the aggregate exceeding 
two per centum on the value of the taxable property within such 
corporation, to be ascertained by the last assessment for state and 
county taxes previous to the incurring of such indebtedness ; and 
all bonds or obligations, in excess of such amount, given by such 
corporation, shall be void : Provided, That in time of war, foreign, 
invasion, or other great public calamity, on petition of a majority 
of the property owners, in number and value, within the limits of 
such corporation, the pubhc authorities, in their discretion, may 
incur obligations necessary for the public protection and defense 
to such an amount as may be requested in such petition. 
[Amendment, in lieu of four old sections. Adopted March 14, 
1881.] 

1. The four old sections related to negroes and mulatoes, which were an- 
nulled bj the 13th, 14th, and 15th amendments to the Federal Constitution. 

2. This amendment probably took efcct March 14, 1S81, at 6 p. m., when the 
poles Avere closed, 104 U. S. 469, S. C. 3 Morrison's Transcript, 407; 10^ U. S. 
i; 62 111. 321; 66 111. 73; 88 111. 302; 2 Hughes (U. S.), 183, S. C. 10 Nat. Bank 
Reg. I, 13 Am, L, Reg. 624; 4 Baxt. (Tenn.) 232; 35 Tex. 752, 

3. If a citj or town is indebted in an amount equal to tzvo fercentum of its 
taxable property, it can not issue an order on its treasury for currefit exj^cnses 
if there are no funds in it which can be applied to the payment of the order; 
and it may be enjoined from issuing such an order when about to issue it, if 
J o provision has been made for its payment, 88 Ind. 473, S. C. 45 Am. R. 467. 
Any tax-payer of the city or town may bring the action, 97 Ind. i, S. C.49 Am. 
R. 416; 64 Geo. 286. But if the current revenues are suflicient to discharge all 
current expenses without increasing the indebtedness, no corporate debt is in- 
curred for such expenses, 97 Ind. i. The word "indebtedness," as used in this 
section, means " an agreement of some kind by the city (or town) to pay money 
where no suitable provision has been made for the prompt discharge of the 
obligation imposed by the agreement, 88 Ind. 473, S. C. 45 Am. R. 467. Con- 
sequently, this section of the constitvition does not apply to -voter to be paid for 
as the water is furnished, if the contract price can be paid from the current 
revenues as the water is f"urnished, without increasing the corporate indebted- 
ness beyond the constitutional limit, or encroaching upon the funds set apart to 



§ 220] CONSTITUTIONAL PROVISIONS. [l6 

other purposes. The items of expense essential to the maintenance of corporate 
existence, such as lights vjater, labor, and the like, constitute current expenses, 
payable out of current revenues, 97 Ind. i, S. C. 49 Am. R. 416; 98 111. 415; 27 
Ia."^227; 36 la. 396; 42 la. 614; 49 la. 58 (see 51 la. 385); 64 Ga. 498 (expenses 
of a jail.; It is otherwise decided in Illinois, 84 111. 626; 105 111.138,215; 87 111. 
385; 89 111. 282, 296; 59 Mich. 3ii,S.C.ii Am. & Eng. Corp. 299. This section 
does not prevent a city or town from issuing fiexv bonds, ivith coupons for future 
interest, for the purpose o{ funding debts, with accrued interest, existing prior 
to its adoption, viz., March 14, 1881, 107 Ind. 106. It in noway effects /«,t/ in- 
debtedness, 107 Ind. 106; 34 la. 208. Its only effect upon §§ 3230 and 3231 
is to limit their application to debts contracted prior to March 14, 1881, and to 
such as have been since incurred, not in excess of the two percentum limit upon 
the value of their taxable property, 107 Ind. 106. Bonds in excess of the amount 
allowed by this provision issued to build necessary school-houses are void, 67 
Tex. 519; so in Georgia to buy b. fre engine, or to pay the difference between a 
new and old one, 64 Ga. 286; so in the same State, a safe, 64 Ga. 498. A con- 
tract for the erection of a building at a specified price, to be completed at a cer- 
tain date, payment for which is to be made as the work progresses, on estimates 
to be made by an architect, less a certain per cent., is in effect a contract to pay 
the price agreed on on the day of completion, and if the amount thereof agreed 
upon is beyond the constitutional limit of indebtedness, the contract, it was held 
in Georgia, is void, 68 Ga. 272. On the contrary it was held in Iowa that a 
contract, by the corporation to pay for work when it shall be performed in the 
future, does not constitute an indebtedness within the meaning of a like consti- 
tutional provision, until the performance of the work, 27 la. 227. This decis- 
ion has been followed in Indiana, 97 Ind. i. So an ordinance authorizing a 
private corporation to co7istruct xvater-xvorks Avithin the city upon certain con- 
ditions named, and providing that the city may, whenever its financial condi- 
tion will permit, purchase and control them is valid; for no actual debt is 
created until the city can lawfully assume it, and then the assumption is entirely 
optionary with the city, 49 la. 58. An agreement by which a city agrees to 
pay a private person a yearly rental for a market-house during a long series of 
years is void where the amount exceeds the constitutional limit, and there is 
not annual revenue enough, after meeting other municipal liabilities, sufficient 
to meet the proposed contract liability, 91 Pa. St. 398. So is a railroad subsidy^ 
though payable in the future. Deady, 481. 

4. Bonds issued under the act of March 5, 1889, commonly known as the 
Barrett Law, (acts 1889, p. 237; Elliott's Sup. §§ 812 to 822,) § 3292^, are 
not the bonds of the city, and can not be taken into account in estimating the 
indebtedness of the city, even though the city is indebted beyond the limit ; such 
bonds are valid, 124 Ind. 292. So' a contract for building a server or improving 
a street or sidewalk, where the contractor only receives a certificate of assess- 
7nent upon the owners of adjacent property in full payment is not the city's 
debt, and it is not affected by this provision of the constitution, 71 la. 500; 114 
111. 562; 54 Tex. 517; 96 U. S. 341; (nor are free gravel road bonds issued by a 
county. III Ind. 299); nor liabilities incurred by reason of the torts committed 
by a city or town, so as to prevent a recovery therefor, 9 Colo. 404; 99 111. 329; 
i6Cal.59i; 38 la. 414; 40 la. 638; 26 N. E. Rep 1074; although it does to ?w///W 
contracts, 9 Colo. 404; nor does it apply to the fees of an attorney for services 
rendered in defending the city in an action brought against it to enforce an in- 
debtedness rendered void by the constitution, 116 Ind. 15; nor to the expenses 
of the county /^;7(?r in keeping the city's prisoners, 87 Mo. 239. But it does 
apply to any agreement to pay an annual rejital for property, 91 Pa. St. 398. 

5. This provision of the constitution does not apply to the State, 13 Cal. 
175'; 2 O.St. 607; 13 B. Mon. 16; 10 Wis. 136; 19 111. 406; 7 Kan. 479, S. C. 12 
Am. R. 425. 

6. Uncollected taxes and the levy for the current year can not be deducted 
from the outstanding debt for the purpose of ascertaining the real indebtedness, 
51 la. 385; nor the value of property' owned by a city outside of the taxable 
property of its citizens, 67 Ga. 293. 

7. Bonds or evidences of debt issued for a debt- created after this constitu- 
tional provision took effect in violation of its provisions are void even in the 



I/] MISCELLANEOUS. [§§ 223 225 

hands of innocent purchasers thereof. Every person buying or taking such 
bonds does so at his own peril; and the representations of the city or town's 
officers that the bonds are valid will not bind the city nor prevent it from in- 
sisting that they are invalid, 114 Pa. St. 435; 109 Pa. St. 554; 9 Colo. 81; 130 
U. S. 662, 674; 39 la. 490; 43 la. 48. 

8. Such an illegal indebtedness can not be ratified neither by a city nor by the 
legislature, 67 Tex. 519; 68 Tex. 511; 39 la. 490; 43 la. 48; 44 la. 122; nor is the 
city liable upon implied contract for articles furnished it in payment for which 
such bonds were issued, 68 Tex. 511; even for the money paid for the bond, 43 
la. 48; 51 la, 3S5. The fact that s. part of the debt is not rendered void by the 
constitutional provision does not make the remainder valid. Such bonds are 
valid to the extent of the authorized issue, and invalid beyond that extent. So 
a tax levied to pay the principal and interest of such bonds is valid so far as it 
is necessarv to that part of them that are valid, and bevond that it is invalid, 43 
la. 48. 

9. Illinois has a somewhat similar provision; and that provision is con- 
strued in the following cases: 74 111. 277; 84 111. 626, 629; 87 111. 385; 89 111. 282, 
296; 99 111.329; 104 111.222; 105 111. 140,216; 114 III. 142,563; 115 111. 239; 
124 111.660; 125 111.603; 10 m- App. 120; 26 111. App. 449. So Iowa has a 
similar constitutional provision, construed in the following cases: 13 la. 229 ; 
15 la. 579 ; 27 la. 227 ; 34 la. 208 ; 35 la. 416 ; 36 la. 396 ; 37 la. 542 ; 38 la. 414 ; 
39 la. 490; 42 la. 614; 43 la. 48 ; 44 la. 122 ; 45 la. 168,666; 47 la. 42 ; 49 la. 58; 
51 la. 385 ; 52 la. 26 ; 59 la. 95 ; 69 la. 140 ; 70 la. 230 ; 71 la. 500. 



ARTICLE 15— MISCELLANEOUS. 

SEC. SEC. 

223. Official appointments. 228. Commissions. 

234. Duration of office. 229. Area of county. 

225. Holding over. 230. Lotteries prohibited. 

226. Official oath. 231. Public grounds. 

227. State seal. 232. Tippecanoe Battle-Ground. 

[R. S. 1852, p. 33. Took effect November 1,1851.] 

Sec. 223. Official appomtments. i. All officers whose appoint- 
ments are not otherwise provided for in this constitution shall be 
chosen in such manner as now is or hereafter may be, prescribed 
by law. 

Construed with reference to the power of the legislature to appoint a state 
officer, 118 Ind. 390, 393, 445, 446, 466; 119 Ind. 395, 406, 412; 121 Ind. 20, 366, 
495; 122 Ind. 17. 

Sec. 224. Buration of office. 2. When the duration of any office 
is not provided for by this constitution, it may be declared by law ; 
and if not so declared, such office shall be held during the pleasure 
of the authority making the appointment. But the general assem- 
bly shall not create any office the tenure of which shall be longer 
than four years. 

If the legislature create an office without fixing a limit to its tenure, the in- 
cumbent holds it so long as it is the pleasure of the legislature to permit him to 
do so, not, however, exceeding four years in duration of time, 33 Ind. 418, 423. 
This section was held to apply to the deputy warden and guards of a peniten- 
tiary, 68 Ind. 285. 

Sec. 225. Holding over. 3. Whenever it is provided in this con- 
stitution, or in any law which may be hereafter passed, that any 



§§ 226 — 232] CONSTITUTIONAL PROVISIONS. [18 

officer, other than a member of the general assembly, shall hold 
his office for any given term, the same shall be construed to mean 
that such officer shall hold his office for such term and until his 
successor shall have been elected and qualified. 

A s/ierif holds until his successor is elected and qualified, 8 Ind. 484; so a 
constable, 20 Ind. 169, 173; a priso?z director, 33 Ind. 517; a towfiship trustee, 
50 Ind. 496; 2i prosecuti7ig attorney, 75 Ind. 518, 522; ^justice of the peace, 99 
ind. 312. This provision applies to all officers elected by popular vote or by 
the legislature or by any other orga?iized body, 113 Ind. 434. Upon the qualifi- 
cation of the newly-elected officer his predecessor is no longer in office, and the 
iatter's bondsmen are not liable for any act of his thereafter, even though he 
remain ostensibly in possession of the office, 38 Ind. 483. If the newly-elected 
officer die after taking the oath, but before his term of office begins, his prede- 
cessor can not hold over, 96 Ind. 374. A clerk of the circuit court, who has held 
the office for eight years consecutively under an election, can not hold over, 
upon the death, without qualifying, of the person selected to succeed him, 106 
Ind. 203. 

Sec. 226. Official oath. 4. Every person elected or appointed 
to any office under this constitution shall, before entering on the 
duties thereof, take an oath or affirmation to support the consti- 
tution of this State and of the United States, and also an oath of 
office. 

1. A failure to take the oath required by this section does not render the 
office vacant, 8 Ind. 134. The oath need not be subscribed, unless required by 
statute, 52 Ind. 132, The inspector, appointed by the circuit court, of a turn- 
pike is not an officer, and need not be sworn, 56 Ind. 213. 

2. The constitution of the United States requires all executive officers of a 
State to take an oath to support its provisions, R. S. 1881, § 23. 

Sec. 227. State seal. 5. There shall be a seal of state, kept by 
the governor for official purposes, which shall be called the Seal 
of the State of Indiana. 

Sec. 228. Commissions. 6. All commissions shall issue in the 
name of the State, shall be signed by the governor, sealed by the 
state seal and attested by the secretary of state. 

Sec. 229. Area of county. 7. No county shall be reduced to an 
area less than four hundred square miles ; nor shall any county 
under that area be further reduced. 

Sec. 230. Lotteries prohibited. 8. No lottery shall be author- 
ized, nor shall the sale of lottery tickets be allowed. 

Sec. 231. Public grounds. 9. The following grounds owned by 
the State, in Indianapolis, namely, the State-House Square, the 
Governor's Circle, and so much of out-lot numbered one hundred 
and forty-seven as lies north of the arm of the Central Canal, shall 
not be sold or leased. 

Sec. 232. Tippecanoe Battle-Ground. 10. It shall be the duty 
of the general assembly to provide for the permanent inclosure 
and preservation of the Tippecanoe Battle-Ground. 



1 9] MISCELLANEOUS. [§235 

SCHEDULE OF CONSTITUTION. 

SEC. 

235. When constitution takes effect. Municipal acts continued. 

Laws continued. Clarksville. 

[R. S. 1S52, p. 22- Took effect November i, 1851.] 

Sec. 235. When constitution takes effect. This constitution, if 
adopted, shall take effect on the first day of November, in the year 
one thousand eight hundred and fifty-one, and shall supersede the 
constitution adopted in the year one thousand eight hundred and 
sixteen. 

That no inconvenience may arise from the change in the Govern- 
ment, it is hereby ordained as follows : 

Laws continued. F2yst. All laws now in force, and not incon- 
sistent with this constitution, shall remain in force until they shall 
expire or be repealed. 



Municipal acts continued. Fourth. All acts of incorporation for 
municipal purposes shall continue in force under this constitution 
until such time as the general assembly shall, in its discretion, 
modify or repeal the same. 

1. The power to "modify" conferred by this clause of the constitution in- 
cludes the power to so " amend " the charter that new powers will be granted 
to the corporation, 106 Ind. 104, 131; iii Ind. 152; 108 Ind. 189. 

2. The power conferred by this section is not restricted by the clause of the 
constitution prohibiting special legislation (R. S. 1881, § 118); 32 Ind. 322; iii 
Ind. 152. Under this clause the legislature may enlarge the jurisdiction of a 
town or city territorially, or otherwise, iii Ind. 152. 

3. The general rule is that cities or towns acting under a special charter are 
not eifected by the statutes relating to cities or towns incorporated under the 
general municipal statutory law of this State, 77 Ind. 542. But such charters may 
be amended by either speciil or general acts ; and whether such is the case 
depends upon the language used in the alleged amending act, 78 Ind. 261, S. C. 
41 Am. R. 561; 108 Ind. 189. The constitution in no way aftected the powers 
of municipalities acting under special charters, 9 Ind. 74. The charter may be 
amended at any time without the consent of the city, 8 B. 361; 3 Ind. 44, 46; 66 
Ind. 396; 102 fnd. 472. 



Clarksville. Sixteenth. The general assembly ma}^ alter or 
amend the charter of Clarksville, and make such regulations as may 
be necessary for carrying into effect the objects contemplated in 
granting the same; and the funds belonging to said town shall be 
applied according to the intention of the grantor. 

The act of June 17, 1852 (special acts of 1S52, p. 96), governs Clarksville. See 
61 Ind. 97; Id. 129; I Blackf. 421. The statutes of ^'irginia and the patent for 



§ 235] CONSTITUTIONAL PROVISIONS. [20 

Clark's Grant are set out in i Blackf. 443, in the appendix. See, also, Hughes 
V. Trustees of Clarksvilie, 6 Peters, 369. 

No portion of the town of Clarksvilie can separate itself from the remainder 
and organize as a separate and distincttown underthe actof June 17, 1852 (special 
acts 1852, p. 96). Consequently the town of Ohio Falls, organized within the 
boundaries of Clarksvilie, was declared illegal, 61 Ind. 97 (overruling 50 Ind. 
535). Concerning power of the trustees of the city to loan money, see 61 Ind. 
129. Such trustees may sue for and receive the funds derived from the sale of 
lots under the charter of 1783, granted by Virginia, according to the terms of 
the act of June 17, 1852, which is valid, 78 Ind. 269. 



I 



STATUTES, 



21 



CHAPTER XXI. 
CORPORATIONS— CITIES. 



ART 
1. 



Incorporation and Organization. 

Government and Poivers, 

Taxation. 

Imfrovemeiit of Streets. 

Opening and Vacation of Streets. 

Ainiexation of Territory. 



ART. 

7. Fire Department. 
7a. Firemen''s Insurance. 

8. City Courts. 

8a. Metropolitan Police. 
8b. Humane Inspector. 
8c. Drainage. 



ARTICLE I— INCORPORATION AND ORGANIZATION. 



SEC. 

3031 

3032 

3033 

3034 

3035 

3036 

3037 

3038 

30380. 

3038&. 

3039- 
3040. 
3041. 
3042. 
3043- 

3043«- 
3043^- 

3043c- 

3043^- 
3044- 
3045- 
3046. 

3047- 

3048. 

3049- 

3050- 

3050a. 

3050^. 

3050C; 

3050^. 
3051- 
3052. 
3053- 
3054- 
3055- 
3056. 
3057- 
3058. 
3059- 
3060. 

306^, 



Petition — Order for census. 3062. 

Marshal's assistants — Return. 3063. 

Notice of election. 3o63«. 

Election board. 3064. 
Manner and return of election. 
Town becomes city — Record conclusive 3065. 
Notice of election. 

New wards, how created. 3066. 

Ordinance necessary. l3o66a. 

Repealing- clause. 3067. 

Old cities may adopt this act. 3068. 

Acquired riglits — Interest on orders. 3069. 

Old officers and ordinances. 3070. 

Duties of common councils in towns. 3071- 

City officers. 3072. 

Qualifications of deputies. 3073- 
Importing persons to serve as deputies 3073a. 

unlawful. 
Unauthorized person serving- as deputy 3074. 

—Penalty. ' 3075. 

Penalty. 3076. 

Oath of election boards. 30760. 

Law of city elections. 3076*^. 

Canvass of votes. 3076c. 

Inspector's certificate. 3077. 

Notice to persons elected. 3077a. 

Penalty for refusal to serve. 3078. 

Vacancies. ^^X^' 

Vacancies — How filled. 3080. 

Length of term. 3081. 

Term. 3082. 

Failure to give bond. 30S3. 

Oath, rights and duties of appointee. 3084. 

Large cities. 30S5. 

Councilmen. 30S6. 

Aldermen. 30S7. 

Legislation — Elections. 3088. 

Separate action. 30S9. 

Officers — Election, 3090. 

President of board. 3091. 

Records— Journal. 3092. 

Pav of members. 3093- 

President of board, when acting- 3094. 

mayor. 3095- 
Sewer tax and districts. 



Mayor's duties and powers. 

Docket fees — Vacancies. 

Fees. 

Suits by city, Avhat averments unneces- 
sary. 

Suits against railroads — Process — 
Judgment. 

Actions for penalties. 

Crimes not punishable by city or town. 

Imprisonment — Stay. 

Clerk's duties — Evidence — Fees. 

Orders — Clerk's duties. 

Duplicate tax-list. 

Assessor's duties. 

Assessor's duties. 

Civil engineer's duties. 

Survey — Prima facie ewidence — Appeal 
— Proceedings. 

Street commissioner's duties. 

Marshal's duties and powers. 

Has constable's powers. 

Acts through county — Citizens to aid. 

Mittimus — Receipt. 

AVhere may arrest fugitive. 

Same fees as constables. 

Fees. 

City attorney's duties and fees. 

Treasurer's "duties. 

Duties of treasurer and clerk. 

Treasurer's duties — Interest. 

Interest — Orders receivable. 

Treasurer's statements and liabilitj-. 

Treasurer's assessmeiits. 

Collecting delinquent taxes. 

Lien of taxes. 

Collecting taxes. 

Sale of land for taxes. 

Notice of sale of chattels. 

Chattels at auction. 

Land, how sold. 

Return of land sold — Redemption. 

Annual settlement. 

Fees on forfeited lands. 

Oath— Bonds. 



23 



§ 3031] CITIES. [24 

[1869 S., p. 30. Approved and in force April 28, 1869.] 

Sec. 3031. Petition — Order for census, i. Whenever one-third 
of the voters of any incorporated town, so far as the number can 
be estimated, shall petition the board of trustees thereof or com- 
mon council of any incorporated city to be incorporated as a city 
under this act, such board of trustees or common council, by an 
order or resolution to that effect entered on their order-book, shall 
direct the marshal or other officer thereof by a proper warrant, fur- 
nishing him with the necessary forms, to take the census of all 
persons who were residents within the corporate limits of such city 
or town at least forty days anterior to the date of such order: Pro- 
vided, JioweveVy That if it shall appear to said board of trustees or 
common council, by the last census of this State or of the United 
States or by any enumeration made by the order of the board of 
trustees or common council of said city or town within two years 
from the date of the receipt of such petition, that said town or city 
had two thousand five hundred inhahitants, said board of trustees 
or common council shall be at liberty to proceed in all respects as 
though the said census had been taken in the manner provided by 
this act. 

ESSENTIAL STEPS FOR INCORPORATION OF A CITY. 

The following are the necessary steps to be taken in order named to change 
an incorporated town into a city: 

1. Petition. A petition must be presented to the board of trustees of the 
town, signed by at least one-third of the voters thereof, for the taking of a 
census. § 3031. 

2. Census. On presentation of the petition the board orders the marshal 
to take a census of all persons resident of the town for a period of forty days 
prior thereto. The census may be dispensed with if the last United States cen- 
sus shows there were, when it was taken, 2,500 inhabitants. § 3031. 

3. MarshaVs return. The marshal makes his report at least sixty days 
from the date of the order. § 3032. 

4. Notice of election. If the returns show 2,000 inhabitants, within ten days 
the board must order an election. § 3033. 

5. Election. The board selects three reputable householders in each ward, 
and these choose a clerk. On the day named in the notice, a poll is opened in 
eac'h ward, § 3034 ; and a return of the result is made up and signed by the elec- 
tion board, § 3035. The election is now held in accordance with the general 
election law. § 4710W. 

6. Certificate of result. An affidavit of the town trustees is attached to the 
inspector's statement, affirming that it is true, and within five days after the 
election is filed with the clerk of the county, of which the clerk makes a record. 
§ 3035- 

7. Date of incorporation. From the time the inspector's statement is filed 
and recorded, the town is a city ; and the record is conclusive of that fact. 
§ 3036. 

8. City divided into ivards. The town trustees must, within five days after 
filing the statement, divide the city into at least three wards, each containing 
KOt less than three hundred inhabitants. § 3037. 

9. Election notice. Within the same "time they must give ten days' notice 
of an election of city officers. §3037. 



25] INCORPORATION AND ORGANIZATION. [§ 303I 

10. Officers elected. Two councilmen for each ward, a clerk, treasurer, and 
marshal. One councilman holds for one year, and the other for two, to be 
determined by lot at the first meeting of the common council. § 3043. 

11. Election. The old trustees appoint the election officers for this election, 
§ 3034 and § 3044, which is governed by the general election law, § 3045 and 
§47io;« ; who hold the election and make a return of the result, delivering the 
result to the inspector. § 3046. 

12. Canvass of result. The inspectors meet in the council chamber or 
other place agreed upon, and canvass the result, make out a certificate of the 
result, and file it with the old town clerk. § 3047. 

13. Notice to persons elected. The old town clerk, within twenty-four 
hours after filing the certificate of the election board, notifies those elected, 
§ 3048, who must qualify within five days after receipt of the notice. § 3049. 

14. First council meeting. The mayor elect calls the first meeting of the 
council within ten days after the election. § 3096. 

15. Old cities. Cities acting under special charters may become incorpo- 
rated under the general law by a resolution of the common council, adopted by a 
majority vote. § 3039. 

NOTES AND FORMS. 

1. QoMxi's, presume that a city of this State is incorporated under the general 
laws, and not under a special law, unless the contrary is shown either by the 
pleadings or proof, 25 Ind. 512; 55 Ind. 250; 63 Ind. 155; 69 Ind. 244; 71 Ind. 
189; 93 Ind. 533 ; 70 Ind. 65. So the courts presume that the name of a city 
is the same that it bore under the old law, although they may not judicially 
know it to be so, 16 Ind. 227 ; 7 B. 36. If a city is sued, the court will presume 
that it is also organized under the general law, 67 Ind. 228. The general law 
does not prescribe by what name a city organized under it shall be known, 16 
Ind. 227. 

2. The general act for the incorporation of cities, approved March 14, 1S67 
(of which the above section is an amendment), repealed the general law, on the 
same subject, approved December 20, 1865, 50 Ind. 569. This law is not uncojt- 
stitutional for Avant of uniformity in the mode of organization; nor are organi- 
zations under it void for that reason, 10 Ind. 70. See § 212, note. Nor does the 
fact that the incorporation is submitted to a vote under the law render it void, 
82 111. 472; 90 111. 186; 103 111. 665. 

3. A m.unicipal incorporation, being public and sovereign in its nature, is 
not liable to be sued neither for a failure to exercise powers entrusted to the 
judgment and discretion of its proper authorities, nor for error? committed in 
their exercise, 29 Ind. 187. See §§ 3151, and 3161, and notes. 

4. For qualification of "voters," see §§ 3222, 3223. 

5. A city adopting the provisions of this statute is governed by any aniend- 
meiit thereof, 82 111. 472. Cities are subject at all times to repeal or amendment 
of their charters or the general laws, at the pleasure of the legislature, 8 B. 361; 
106 111. 242; 97 111. 72; 83 111. 95; they are subject at all times to the control of 
the legislature, 25 111. 190; 12 111. i; (police powers, see 126 111. 27S, 2S2, note;) 
not, however, to the extent of depriving them of the power of local self-govern- 
ment, 118 Ind. 382, 426. 

6. The legislature has no power to grant a special charter to a city. The 
constitution prohibits it, § 212, 7iote. But it may amend the charter of a city 
granted and in force previous to November i, 185 1, the time at which the pres- 
ent constitution went into force. § 235, clause 4, note. 

7. It is only an incorporated town that can become an incorporated city. 
There is no law authorizing the inhabitants of a given territory, not incor- 
porated first as a town, to be incorporated as a city. For incorporation of a 
town, see § 3293. A signer may withdraw his name before acted upon, 42 O, 
S. 215; but not afterwards, 24 Ind. 146. 

8. Upon presentation of a proper petition it is compulsory upon the board 
or common council to proceed in the manner directed by this and the follow- 



§ 3031] CITIES. [26 

ing sections, 78 111. 382. In the case of a city the same is true; but the common 
council also have the power to adopt this act, § 3039. The mayor alone can 
not order an election, 89 111. 338. Whether or not one-third of the voters signed 
the petition, is a question for the board of trustees, and their decision is con- 
clusive, 15 Ind. 395. 

9. The following forms, by slight changes, are also applicable to the case 
of a city desiring to adopt this act, and abandon its special charter. 

Petition for the Incorporation of a Town as a City. 

To the Board of Trustees of the ToTvn of ; 

Your petitioners, being one-third of the voters of said town, respect- 
fully represent that they desire that said town be incorporated under the general 
act of the general assembly of the State of Indiana (and amendments thereto) 
for the incorporation of cities ; and say that said town has a population of 2,000 
inhabitants, a number requisite for such incorporation. 
[Sigiied by one-third of all the voters of the town.] 

Journal Entry on Presentation of Petition. 

Whereas, a petition has been presented to the board of trustees of this 

town of , signed by R. T. and one-third of all the voters of said town, 

praying that said town be incorporated as a city under the general act (and 
amendments thereto) of the general assembly of the State of Indiana for the 
incorporation of cities, and alleging that this town has 2,000 inhabitants; and 
Whereas, this board of trustees are satisfied and so find that the persons who 
signed said petition constitute at least one-third of all the voters of this town; 
therefore, the marshal of this town is hereby ordered and directed to take a 
census of all persons who are nov/ and have been residents within the corporate 

limits of said town for a period of forty days anterior to this date, viz.: , 

18 — , and make a full return thereof under oath to this board within sixty days 
from the testing of this order. The clerk of this tovrn is hereby ordered to deliver 
to said marshal a certified copy of this order, which shall be taken and deemed 
a sufiBcient warrant to enable him to take said census. He shall also furnish 
him with all necessary forms and papers for such purpose. 

Election Ordered Without a Census. 

Whereas, it appears to the board of trustees of this tov.m that said town 
of , by the last census of this State, [or, of the United States, or, by an enu- 
meration made by the order of this board of trustees by the marshal of this 

town, which enumeration was made in the months of and , 18 — ,] 

had a population of 2,500 inhabitants [or, by the special census of the marshal 

of this town ordered by this board on the day of , 18 — , to be taken 

by said marshal, that on the day of , 18 — , and at least for forty 

days anterior to the date of said order, said town had a population of at least 
2,000 persons bona fide residents thereof] ; and 

Whereas, R. T. and other the voters of this town have petitioned said board 

that said town of be incorporated as a city under the general act (and the 

amendments thereto) of the general assembly of the State of Indiana for the 
incorporation of cities therein; and 

Whereas, this board finds that said petitioners so signing said petition consti- 
tute fully one-third of the voters at the date of the receipt of said petition by 

this board, viz.: the day of , 18 — , of the voters of this town, viz.: 

the town of , State of Indiana; therefore, 

Sec. I. Be it ordained by the board of trustees of the tovj7i of ; 

[Proceed as in the form of the ordinance given under § 3033.] 



27] INCORPORATION AND ORGANIZATION. [§§3032,3033 

[1S67, p. 33. Approved and in force March 14, 1867.] 

Sec. 3032. Marshal's assistants — Return. 2. Such marshal or 
other officer, with the concurrence of such board or council, may 
appoint assistants, and shall, within sixty days from the time of 
receiving such warrant, make full returns, under oath, to said board 
or council, of the resident population in such town or city as afore- 
said. 

This section does not require the marshal to make and return a list of the 
names of the inhabitants. 



Ratification of the Marshal's Appointment of Assistants. 

• 

Whereas, A. B., marshal of this town, has appointed C. D, and E. F. 
assistants to aid him in taking a census of the inhabitants of this town, as or- 
dered by this board , i8 — , this board hereby concurs in said appointment, 

and approves the same. 

Marshal's Return. 

To the Board of Trustees of the Toivn of .* 

I most respectfully report to your honorable body, that pursuant to 

your order of , 18 — , I have taken a census of all persons who were at that 

date, and had been for forty days anterior thereto, inhabitants of said town; and 

I find that there were at said date inhabitants thereof. 

A. B., 

Marshal of the Town of . 



I, A. B., upon my oath say that I am marshal of the town of ; and 

that the report and return above made is true. 

A. B. 

Subscribed and sworn to before me this day of , i8 — . 

L. M., 

Notary Public. 
[1875, p. 30. Approved March 11, 1875, and in force August 24, 1875.] 

Sec. 3033. Notice of election. 3. If the return shall show a popu- 
lation of two thousand persons or more, the trustees or common 
council, within ten days thereafter, shall publish a notice to the 
voters of such town or city, as in other corporations, stating that 
on a day, at a place named, a poll will be opened to determine 
whether such town or city shall be incorporated as a city. 

1, Only one poll can be opened, and not a poll in each ward, as the fol- 
lowing section would seem to indicate. See 109 Ind. p. 77. 

2. The notice of election is governed by § 3304. 

Election Order. 

Whereas, R. T., and one-third of the inhabitants of this town, on the 

day of , 18 — , presented a petition to the board of trustees of this 

town, praying that this town be incorporated as a city under the general laws 
of the State of Indiana; and, 

Whereas, pursuant to the request of said petition, this board on the ■ 

day of , 18 — , ordered the marshal of said town to take a census of all the 



§ 3034] CITIES. [2S 

persons who were then and had been inhabitants forty days previous thereto 
of said town; and make return thereof to this board; and, 

Whereas, said marshal has taken a census of all such persons, and made re- 
turn thereof under oath to this board; and, 

Whereas, by the return of said marshal it appears, and this board so finds, 

that there w^ere on said day of , i8— , more than 2,000 of such 

persons, viz., , who were then and had been for at least forty days anterior 

to the date of said order, inhabitants of this town; therefore, 



Sec. I. Be it ordained by the board of trustees of the tozvn of ; 

That an election be held on the day of , 18—, to obtain the 

sense of the voters of said town of on the question of such incor- 
poration, and that a poll be opened at the place herein designated, viz., at the 
school-house situated at the corner of Vermont and Illinois streets, for such 
purpose. 

Sec. 2. That ten days' notice of the time and place of opening the polls of 

and holding said election, be given by publication in the Daily Argus 

{or, by posting notices in five public places in said town]. 



Election Notice. 

To the Voters and Inhabitants of the ToTvn of ; 

Notice is hereby given to all such persons, that a poll will be opened in 

said town from 6 a. m. to 6 p. m. on the day of , 18 — , at the 

place hereinafter designated, for the purpose of determining whether or not 
said town shall be incorporated as a city under the general act (and the amend- 
ments thereto) of the general assembly of the State of Indiana for the incorpora- 
tion of cities, in accordance with the petition of R. U. and other voters of said 

town, presented to the board of trustees of said town on the day of , 

18 — , praying that said town be so incorporated, viz.. 

At the school-house situated at the corner of Vermont and Illinois streets. 

A. B., 
CD., 
E. F., 

Board of Trustees of the Town of . 

Attest : 
V. X., 

Clerk. 



[1867, p. 33, Approved and in force March 14, 1867.] 

Sec. 3034:. Election board. 4. The trustees or common council 
shall appoint three reputable voters in each ward, one to act as 
inspector and two as judges of elections therein ; and the persons 
thus appointed shall choose a clerk of such election. Such trustees 
or council shall also procure and deliver to such inspector, at least 
one day prior to such election, a ballox-box, which shall thereafter 
be retained for the use of such ward. If such inspector or judges, 
or either of them, or the clerk, after appointment and acceptance 
thereof, neglect or refuse to serve, such inspector or clerk shall for- 
feit and pay for the use of such city any sum not exceeding forty 
dollars, which shall be recoverable in an action at law; and the 
electors, being met on the day appointed, may choose, by voice, 
such inspector or judges as may be necessary to organize the board ; 
and the inspector or judges so chosen may select the clerk. 



2g] INCORPORATION AND ORGANIZATION. [§ 3035 

1. Only one inspector and two judges are to be appointed; for only one poll 
in the town can be opened, see § 3033, and ;w/e. 

2. The incorporation is governed by the general election law, with refer- 
ence to the ti?}2e 0/ day during which the poll shall remain open, viz.: from 6 
a. m. to 6 p. m., § 469S. 

3. In an action against an election officer for failing to serve upon the board 
of election, the action is brought by the town if it is not incorporated as a city, 
or if brought before the town becomes incorporated; but if brought after an in- 
corporation is effected, it must be brought by the newly-incorporated city. In 
the latter instance the form given below can be changed to suit the facts. 



Appointment of Election Officers. 

For the election to be held in this town on the day of , 

18 — , L.V. is hereby appointed inspector, R. S. and U. Z. judges, all of whom are 
reputable voters of said town. 



Complaint to Recover Penalty. 

The town of complains of L.V. and says: That on the day 

of , 18 — , at a regular session of the board of trustees of said town a peti- 
tion was presented to said board by one-third of the voters of said town, praying 
that said town be incorporated as a city under the general laws of the State of 
Indiana; that in pursuance of the prayer of said petition said board ordered the 
marshal of said town, by a warrant directed to him, to take a census of all per- 
sons who were residents of said town at the time said petition was so presented, 
and who had been for a period of forty days anterior thereto; that said marshal 
did take said census and make a return thereof to said board, by which it ap- 
peared that more than 2,000 persons were, and had been for forty days anterior 
thereto, inhabitants of such town anterior to the date of said order; that, there- 
upon, said board ordered an election to be held in said town on the day 

of , 18 — , ordered a poll to be opened at a certain described place in said 

town, of which due notice was ordered to be given, and appointed said L. V. in- 
spector at said poll; that the clerk of said town gave notice of said election, and 
immediately notified said L.V. that he was appointed such inspector, which ap- 
pointment said L.V. then and there accepted; arid that upon the day appointed 
for said election said L.V. wholly neglected [cr, refused] to serve as such inspect- 
or for said day, or any part thereof. 

Wherefore said town demands judgment in the sum of forty dollars for the 
use of said town; and prays for all other proper relief. 

A. B., 
Attorney for the Plaintiff. 

Sec. 3035. Manner and return of election. 5. Such election 
shall be governed by the same rules as other corporation elections. 
And the ballots of the voters shall have thereon the word **yes " 
or the word **no "; and if a majority of the ballots given at such 
election have thereon the word "no," the voters of such town or 
city shall be deemed not to have consented to its incorporation as 
a city, and no further proceedings shall be had in relation thereto ; 
but if a majority of such ballots shall have thereon the word * ' yes, " 
the inspector shall make a statement showing the number of votes 
given having the word "yes" and the number having the word 
"no" thereon; and such statement shall have attached thereto 
the affidavit of such trustees or of the mayor of such city, verifying 
the truth of the same, and, within five days after such election, 



§ 3035] CITIES. [30 

shall be filed in the office of the clerk of the circuit court of the 
proper county. The clerk shall make a record thereof, for which 
he shall receive the same fees as are paid him for like services in 
other cases. 

1. The general election law of 1889 manifestly applies to an election for the 
incorporation of a city, so far as applicable, especially with reference to the bal- 
lots. § 4710/ and § 47io;;z. 

2. The inspector and judges are olScers under this section, their duties not 
being judicial but ministerial. They may be compelled by mandate to make the 
proper return, 39 Ind. 48S ; or at least the inspector may be, if a result in favor 
of the incorporation has been ascertained, and he and the judges may be com- 
pelled to count the ballots for and against such proposed incorporation in order 
to ascertain the result. If a majority of the ballots are against the proposed in- 
corporation^ no return is required and no further proceedings need be taken. 
The statute does not require the judges to sign the return, although the better 
practice is for them to do so. The certificate of the inspector is the sole evi- 
dence on which the board of trustees and clerk of the circuit court can act, 123 
111.328. 

3. In order to authorize the incorporation it is sufficient that a majority of 
those who voted are in favor of it ; and the fact that a majority of all the voters 
in the town did not vote in favor of it does not prevent an incorporation, 109 
Ind. 73; 67 111. 62 ; 65 111.290; 56 111.413. A submission, however, to only a 
part of the city, or in certain precincts thereof, would be a void election, 46 111. 
415. How far such an election can be contested, see § 3036. 

4. The statute does not declare where the return shall be recorded by the 
clerk, but presumably in the order book. When so done the clerk should 
append a certificate thereto, and file away the original. A failure to file the 
return within the five days does not prevent its being filed thereafter. 

Election Return. 

Statement of the number of votes cast in the town of , in the 

State of Indiana, at an election held in pursuance of the order of the board 
of trustees of said town on the day of , 18 — , for the purpose of de- 
termining whether or not said town should be lincorporated as a city under the 
general act (and the amendments thereto) of the general assernbly of the 
State of Indiana for the incorporation of cities, in accordance with the petition 
of R. T. and other voters of said town. 

Number of ballots having thereon the word "yes," . . 

Num.ber of ballots having thereon the word "no," . . 

Total number of ballots, 

Majority in favor of the incorporation, . . . 



InsDector. 



Judges. 

Affidavit of Board of Trustees attached to the E'ection Return. 

State of Indiana, County of , .?.?. 

A. B., C. D., and E. F., upon their oath state that they constitute the 

board of trustees of the town of , in the State of Indiana ; that on the 

day of , 18 — , an election was held in said town for the purpose of 

determining whether or not said town should be incorporated as a city under 
an act (and the amendments thereto) of the general assembly of said S'tate,for 
the incorporation of cities, pursuant to notice duly given, which resulted as fol- 



3l] INCORPORATION AND ORGANIZATION. [§303^ 

lows, as shown by the foregoing statement of the inspector and judges of elec- 
tions, viz.: 

Number of ballots having thereon the word "yes," . . 

Number of ballots having thereon the word " no," . . 

Total number of ballots, 

Majority in favor of the incorporation, . . . 



Subscribed and sworn to before me this day of 





A. 


B., 




C 


D., 




E 


F. 


, i8- 






Notary 


Public. 



I 



Journal-Book Entry. 

Be it known that at the election held on the day of , i8 — , 

in the town of , under an order of the board of trustees of said town, duly 

made upon petition signed hy at least one-third of voters of said town, for the 
purpose of determining whether said town should be incorporated as a city un- 
der the general laws of the State of Indiana for the incorporation of cities, and 
amendments thereto, which election was had and held after a proper census of 
the inhabitants of said town had first been made by the marshal of said town, 
showing a population of over 2,000 inhabitants, and after the notice thereof 
had been given in pursuance of the order of said board of trustees, that a ma- 
jority of the ballots cast were in favor of incorporating said town as a city, 
as appears from the return of the election inspector, to wit: 

Those in favor of incorporating as a city, 

Those opposed to incorporating as a city, 

Total, 

Majority in favor of incorporating as a city, . 

Sec. 3036. Town becomes city — Record conclusive. 6. Such town 
shall thereafter be deemed an incorporated city, with the powers 
and franchises appertaining- thereto ; and the record in the office of 
the clerk, as aforesaid, shall be held in all courts as conclusive 
evidence of such incorporation in any suit pending therein. But 
nothing in this act contained shall preclude any person interested 
from showing that a majority of the legal voters of any such town 
or city had not agreed to such change. 

If the town is changed to a city, the latter is liable for the costs of the elec- 
tion; if no change is made, the town is liable. 

1. The incorporation dates from the time of fi/hzfi- the statement referred to 
in the above section, and not from the time of recording it. 

2. The record is conclusive that a proper statement Avas filed and recorded, 
and of all proceedings previous thereto. The only thing an interested person 
(and only by a direct proceeding, 76 111. 49) attacking the corporation can show, 
is, that a majority of the ballots cast was not in favor of the new incorporation. 
Even the regularity of the census can not be questioned. The legalitv of the 
change can only be tested by an information, and when brought by a private 
person, must show (i) that the relator is interested in the subject-matter, (2) 
that he did not by his vote, or otherwise, concur in the proceedings of which 
he complains, and (3) that, where there is no fraud' or intentional violation of 
law, no public or private interest will be seriously aft'ected by the granting of 
the relief demanded, 109 Ind. 73. Perhaps the frosccuting attoDicy could at- 
tack, by information, the organization of the city, 72 Ind. 161; 84 111. 162; 70 
N. Y, 518; but the legality of such organization can not be attacked in an in- 



§3037] CITIES. [32 

formation brought to test the right of a person claiming to exercise an office of 
such a city. It can not be attacked collaterally ^dz^ Ind. 492; 47 Mo. 17; 3 East 
119; 7 Rich L. 234; 50 111.39; 46 111.9; 24 111. 22; 20 111. 197; contra in New 
York, by statute, 24 N. Y. 86, and Minnesota, 25 Minn. 215. See 31 N.J. L. 
355; 15 Mich. 463; 29 Mich. 451, S. C. 18 Amer. k. 107; 41 Mich. 647; 10 Mass. 
290, S. C. II Am. Dec. 339. If the officers of a corporation are acting without 
the scope of their authority the remedy is by injunction, 65 Ind. 492; 106 Ind. 
66; but the legality of the incorporation can not be thus tested, 70 N. Y. 518. 
Any one sued by a city can not question its organization or incorporation, 24 
Ala. 398; 69 Ind. 273; 50 111. 39; 78 111. 237. The charter of a cWy or town can 
not be declared f orfeited by reason of the neglect or misconduct of its officers, 
14 Pa. St. 177; 24 Ala. 398; 30 Ala. 66; 103 Mass. 138; 123 Mass. 460; i Dill C. 
C. 130. 

3. The city takes the name of the town it succeeds. There is no statute 
upon the subject, 16 Ind. 227. In matters touching its school interests the city 

must sue or be sued as the " school city of ," 55 Ind. 7 ; 47 Ind. 554; 62 Ind. 

257; 67 Ind. 380; 109 Ind. 559. See § 4438, note. The word tozvn comprehends 
a city, being generic, 24 Ind. 286; a town is not always a city; but a city is al- 
ways a town, 55 Ind. 535. Process is served on the mayor, R. S. 1881, § 316; or 
in an action against the school city, on the school trustees, R. S.1881, § 4536; 55 
Ind. 7. By the transition from a town to a city the latter is liable for the 
debts of the former, 50 111. 453; 3 Dana (Ky.) 10; 21 Cal. 668; 93 U. S. 266; 2 
Woods, 662; 38 Kan. 562; 29 Fed. Rep. 742; 35 Fed. Rep. 32. The toivn 
ordinances contimce in force so far as they are not inconsistent with the law ap- 
pertaining to cities, 77 Ind. 542; 31 Pa. St. 515. The city succeeds to all the 
rights and property of the old town, 7 Wall i; R. M. Charlt. (Ga.) 342; 3 Pet. 
398; I Rob. (La.) 279; 39 La. An. 439; 76 111. 447; loi 111. 478. 

4. "A municipal corporation is composed of the inhabitants of the territory 
over which its limits extend, and not of the officers. It is an instrumentality of 
local self-government, and every voter is a participant in the governmental 
aifairs of the corporation. There, as elsewhere in free governments, the major- 
ity rule, and the officers elected are the representatives of the citizens, and their 
official acts are the expressions of the public," 100 Ind. 575, 443; 97 Ind. i, S.C. 
49 Am. R. 416. 

5. The incorporation of the city of Kokonio was legalized March 8, 1875 
(acts 1875, p. 92); and of Seymour, March 7, 1879 (acts 1879, p. 17). 

Sec. 3037. Fotice of election. 7. The trustees or common 
council of such town or city shall, within five days after the filing 
of such statement, divide the city into not less than three wards ; 
but no ward shall contain less than three hundred inhabitants ; 
and they shall also, within the time aforesaid, cause to be given to 
the voters thereof ten days' notice, by publication in one or more 
newspapers printed in such city, or county in which the same is 
situated, and by posting copies of the same in three public places 
in each ward, that an election will be held in each of the several 
wards, on a day and at the places therein named, for the election 
of the city officers specified in such notice. 

1. The courts will not tiike Judicial notice of the number of wards or of 
councilmen in a city, 40 Ind. 310. If not performed within five days after the 
///?/^ of the statement it may be done thereafter. See 51 111. 49. This must 
be done by the board of trustees at their regular or a special session ; it can not 
be done as individuals. The order for an election may be entered in the jour- 
nal book or record of the old town, or in a new book procured for the city's use. 

2. The election laxv of 1889 governs an election under this section. §4710;;?. 

3. The tertn of the office of councilmen, at the first election, is determined 
by lot. § 3043. 



I 



33] INCORPORATION AND ORGANIZATION. [§ 3038 

4. Bv the act of iSGg, § 46S6, the board must also divide the ward into pre- 
cincts. See also § 3224. 

5. Mandamus lies to compel the town officers to forthwith proceed to divide 
the city into wards and call an election, 106 111. 242. 



Journal-Book Enti-y of Creation of Wards. 

It is ordered that the city of be, and the same is hereby, divided 

into wards, defined as follows: 



Order for Election. 

It is hereby ordered that an election be held in each of the several 

wards of the city of on the day of , 18 — , between the hours 

of 6 a. m. and 6 p.m., lor the purpose of electing a mayor, city clerk, treasurer, 
marshal, and two councilmen for each ward, to wnt: 

Ward Number One. At the Court House, etc. 
It is also ordered that the clerk of this board give due notice of such elec- 
tion, by publication for ten days in the Daily Argus. 

Election Notice. 

To the Voters of the City of ; 

You are hereby notified that an election will be held in each of the 

several wards of said city, at the places hereinafter designated, on the day 

of , 18 — , between the hours of 6 a. m. and 6 p. m., for the purpose of elect- 
ing a mayor, city clerk, treasurer, marshal, and two councilmen for each 
ward, to wit: 

Ward Number One. At the Court House, etc. 

By order of the board of trustees of the town of . 

A. B. 

Clerk. 

[1891, p. 83, Approved and in force March 4, 1891.] 

Sec. 3038. New wards, how created, i. The common council 
of all cities in the State, organized under **An act to repeal all 
general laws now in force for the incorporation of cities, and to 
provide for the incorporation of cities, prescribing their powers 
and rights, and the manner in which they shall exercise the same, 
and to regulate such other matters as properly pertain thereto " 
(approved March 14, 1867), shall have the power and are hereby 
invested with the authority to divide the said cities into wards, to 
change the boundaries of existing wards, and to redistrict the city 
for ward purposes whenever, in their judgment, it shall be deemed 
expedient so to do. Such wards shall contain, as nearly as pos- 
sible, an equal number of voters, and be composed of compact and 
contiguous territory : Provided, however, That no division into 
wards, or change of existing ward boundaries, or redistricting for 
ward purposes, shall be made oftener than once in every period of 
ten (10) years. 

This act of 1891 repeals § 79 of the general city law, as amended in iSSi, 
authorizing the change of wards only upon petition. This section is here sub 
stituted for that section. 
3 



§§ 3038^—3040] CITIES. [34 

Sec. 3038^. Ordinance necessary. 2. The common council of 
said cities shall, upon doing any of the acts or things in § i [3038], 
above enumerated, do so by ordinance, and upon the doing of the 
same shall give notice of such action by at least three publications 
for three consecutive weeks in two papers of opposite politics pub- 
Hshed in said city. 

Notice of Change in Ward Boundaries. 

Notice is liereby given to the inhabitants of the city of that on 

the day of ■ — , i8 — , the following ordinance was introduced in the 

common council of said city, and that the same was adopted by said common 
council on the day of , i8 — , viz.: [Set out the ordinance at length.'] 

In testimony whereof I have hereunto set my hand and the seal of said citj^ 

on this dav of , i8 — . 

[City Seal.] A. B., 

Clerk cf the City of . 

Sec. 3038^. Eepeaiing clause. 3. All laws and parts of laws 
coming in conflict with any of the provisions of this act be and the 
same are hereby repealed. 

[1867, p. 33, Approved and in force March 14, 1867.] 

Sec. 3039. Old cities may adopt this act. 80. Any city hereto- 
fore incorporated under a law of this State may, by a resolution of 
the common council, adopted by a majority vote thereof and en- 
tered upon their record-book, become a municipal corporation 
under this act. The same shall be deemed a surrender of the 
charter of such city, with all the rights and franchises therein con- 
tained ; and no such city shall be entitled to any provision of this 
act without adopting the whole act. 

See § 3031, note. This resolution need not be published. Any old city 
adopting the general law is governed by any amendment thereof, 82 111. 472. 

Journal-Book Entry. 

Resolved by the common council of this city of , That an act 

(and the amendments thereto) of the general assembly of the State of Indiana, 
approved Marcli 14, 1867, entitled "An act to repeal all general laws now in 
force for the incorporation of cities and to provide for the incorporation of 
cities prescribing their powers and rights, and the manner in wliich they shall 
exercise the same, and to regulate such other matters as properly pertain 
thereto,'' be and the same is hereby adopted by this common council oi this said 
cii-'y as the law of its incorporation ; and all the rights and franchises under the 
present charter of this city is hereby surrendered. 

Sec. 3040. Acquired rights — Interest on orders. 81. No rights 
acquired or liabilities incurred in favor of or against the city, and 
no suit or prosecution of any kind pending, shall be affected by 
the surrender thereof, as provided in the precedmg section, but 
the same shall remain and be in progress as if no change had been 
made ; and all property, real and personal, of any kind whatever, 
belonging to any town or city before its acceptance of this act^ 



35] OFFICERS. [§§3041—3043 

shall be and remain the property of such city from and after its 
adoption of this act. Cities shall, in all cases, be liable to pay 
interest on their orders or other liabilities payable on demand from 
and after such demand, which shall be indorsed on the same by 
the treasurer when presented. 

See § 3036, note 3, touching liability of city for town's indebtedness. For 
interest on citv orders, see § 30S1. 

Sec. 3041. Old ofiicers and ordinances. %j. Officers of any city 
coming under this act shall remain and continue in their respect- 
ive offices subject to the provisions of this act, and perform the 
duties herein required, until the expiration of the term for which 
they were elected, and until their successors are chosen and quali- 
fied, under the oaths of office already taken and under the official 
bonds already filed : Provided, That this section shall not extend 
to any office or officer not recognized by this act. All by-laws, 
ordinances, and regulations, not inconsistent with this act, shall 
remain and continue in full force until altered or repealed by the 
common council of such city. 

Touching the continuance of old ordinances in force, see § 3036, note 3 ; loi 
111. 478 ; 5 O. 394. The old charter is abrogated and the tenure of all old offices 
terminated, except such as are Avithin the saving clause of this section, 106 111. 
242; 83 111. 95; 24 111. App. 19; 78 111. 237. The length of the term of such 
offices is completely under the control of the legislature, 67 111. 333 ; 19 111. 38 ; 
I Scam. (111.) 537. This does not render valid an ordinance passed by a town 
not having the power to pass it, even though the city to vv^hich it is changed 
has such power, 5 O. 394. 

Sec. 3042. Duties of common council in towns. 90. In those in- 
corporated towns, which have a common council instead of a board 
of trustees in their organization, the duties of this act required to 
be performed by the board of trustees shall be performed by the 
common council : Provided, That this act shall be in force from 
and after its passage in all the cities which previous thereto have 
been organized and acting under the several acts hereby repealed, 
without any further acceptance or proceedings on the part of any 
such city. 

[1877, P- 12. Approved and in force March 6, 1S77.] 

Sec. 3043. City officers. 8. The officers of such city shall con- 
sist of a mayor, two councilmen from each ward, a city clerk, asses- 
sor, treasurer, civil engineer, street commissioner, and marshal, and 
(if the common council deem it expedient) a city attorney and a 
city judge. The city attorney, the street commissioner, and a civil 
engineer shall be appointed by the common council : Provided, 
That the common council may dispense with the street commis- 
sioner, and require the marshal to perform his duties. All such offi- 
cers shall hold their respective offices for two years, and until their 
successors are elected and qualified, except as herein provided. 
After the first general election on the first Tuesday in May, said offi- 
cers shall respectively hold their offices as follows, to wit: The 



§ 3043] CITIES. [36 

mayor, city judge, clerk, marshal, treasurer, and assessor, two years 
each : And provided, That the term of office of the clerk, treasurer, 
and assessor shall commence on the first IMonday in September 
following the general election in May, and that the term of office 
shall be two years from such Monday in Septem.ber: And provided, 
fiirther, That the clerks, treasurers, and assessors now in office, 
and whose terms expire in May, shall hold their respective offices 
until the first Monday in the month of Septemiber next ensuing 
the expiration of their term in ]\Iay ; and that such clerks, asses- 
sors, and treasurers as may elect to so hold, shall procure, from 
their sureties, a written consent to the aforesaid extension ; other- 
wise their terms of office shall terminate in May of the original 
term for which they were elected. The city attorney, street com- 
missioner, and civil engineer, two years each, subject to removal 
by said common council at their pleasure. And the councilmen 
shall be elected by the legal voters of their respective wards ; and 
one councilman from each, to be determined by lot at the first reg- 
ular meeting after their election, shall hold his office one year, and 
the other, to be determined in like manner, shall hold his office 
two years; and, annually thereafter, one councilman shall be elect- 
ed by the legal voters of each ward. And all of said officers 
shall hold their respective offices during their respective terms, and 
until their successors are elected and qualified. The said clerk, 
assessor, treasurer, and marshal, with the consent of the common 
council, may appoint one or more deputies when necessary. Pr<9- 
vided, further, That the common council of a city governed by this 
act may order the election of an auditor, who shall be elected as 
other city officers are elected, and shall hold his office for two 
years, and until his successor is elected and qualified; and the 
common council shall have power to prescribe the manner of 
quahfying for such office, and to prescribe the powers and duties 
thereof, which shall in no wise conflict Avith the provisions of this 
act. And provided, further, That no person shall hold the office 
of councilman unless, at the time of his election, he is a resident of 
the ward from which he is elected ; and in case of the removal of 
any councilman from the ward from which he was elected, the 
comimon council shall have power to declare his office vacant, and 
order a special election to fill the vacancy. 

The office of councilman in a city is not lucrative, 44 Ind. 401. 

I. See § 90, note. Under the act of 1859 the first general election was held 
on the first Tuesday in May, 13 Ind. 502. For general duties of mayor, see 
§ 3062 ; of clerk, §§ 306S to 3070; oi assessor, §§ 3071, 3072; of treasurer, §§ 3079 
to 3094; of civil engnieer, § 3073; of street commissioner, § 3074; of marslial, 
kk 3075 to 3077; of c/Y^v attorney, § 3078. There is no law now in force author- 
izing the common council to elect a city judge, it being repealed, if not before, 
by the act of 1875, §§ 3204 to 3221. Touching the removal of the city attorney, 
street commissioner, and civil engineer, see § 3101 and note. For election of 
chief engineer of the fire department, hoard of health, sealer of v.'eights and 
measures, and supervisors of streets, see § 3098; 'U.'hen such officers are elected, 
§3092. 



37] OFFICERS. [§ 3043 

2. The right of local self-government can not be taken awaj from a city; 
nor can the legislature elect officers for a city. It can not interfere ^yith the 
right of a city to proyide and maintain a fire or police department. Con- 
sequently, the ^yhole act of March 7, 1S89 (acts 1889, p. 222, El. Sup. §§ 721 to 
737), is unconstitutional, 118 Ind. 426, 449; 123 Ind. 17; 121 Ind. 514. So is the 
entire act of March 8, 1889 (acts 1S89, p. 247, El. Sup. §§ 759 to 783), which as- 
sumes to giye the exclusive control of the streets, alleys, sewers, light, water 
supply, etc., of certain cities, to a board of control chosen bj the legislature, 118 
Ind. 382. 

3. The legislature may create a municipal office, but it can not fill it, 118 
Ind. 382,426, 449; 121 Ind. 514; 123 Ind. 17. The office being entirely statutory, 
the legislature may abolish it, even during the unexpired part of an incumbent's 
term, 18 Ind. 264;"^ 17 Ind. 483; 7 Ind. 157, 172; 50 Ind. 194; 27 Ind. 465; or they 
may extend it. 

4. The office of mayor is 2i judicial office ; and during the term for vv'hich he 
is elected he can not be elected to any other office, except to a judicial office. 
See § 176, 7iote; 12 Ind. 569; 14 Ind. 93; 35 Ind. iii, see 41 Ind. p. 577; R. S. 
1881, § 5553- He does not need a commission before entering upon his official 
duties, 20 Ind. i; 21 Ind. 516; 33 Ind. 390; such commission is only frima facie 
evidence of the facts recited in it, 61 Ind. 379; if it extends beyond the term of 
office it will not extend such term, 72 Ind. 297. For commission of other city 
officers, see § 3048, note. 

5. Members of the council are not liable either civilly or criminally for acts 
done bv them as such, in the exercise of a discretion confided to them by law, 
unless they act corruptly or maliciously, 27 Ind. 485; 32 Ind. 239; nor for honest 
mistakes or errors of judgment for acts within the scope of their authority, if a 
^«<7v?/-judicial authority. 17 O. 402; 13 O. 523, 157; 7 How. 89. Notice to 
the council of a defective street or bridge is notice to the city; and if the council 
has appointed a committee to examine such defect, its report is admissible in 
evidence to show knowledge of such defect in the city, 74 Ind. 520. Even notice 
of such defect to one councilman is notice to the city, 74 Ind. 378, S.C. 39 Am. 
R. 79; 20 Am. L. Reg. 796. Usually the officer who has notice of a defective 
street, must have some power or duty with respect to it, in order to bind his 
city by such notice, 98 Mass. 39 (mayor); 91 N. Y. 137 (policeman); 30 Vt. 
155; 71 Pa. St. 140. 

6. The common council may remove the city attorney, street commissioner, 
or civil engineer at their pleasure by a bare majority vote without preferring 
charges against him; but if charges are preferred, then a two-thirds vote is 
essential to efi'ect a removal. See § 3101, 32 Ind. 74; 119 Ind. 481. So long as 
he remains in office he has the right to discharge the duties thereof, 97 Ind. loi. 

7. Unless the council consent to it, neither the clerk, assessor, marshal, nor 
treasurer can appoint a deputy. Without such consent such deputy's acts .are 
void, 49 Ind. 491. The council can not delegate to a person, under the guise of 
a deputy treasurer, the duties of his principal, to the latter's exclusion, 88 
Ind. 62. 

8. If the services of a street commissioner are dispensed with, and he is 
then re-afj)oi'iited, his term of office commences from the time of his last ap- 
pointment, and continues two years, 97 Ind. loi. The council possess no power 
to suspend him or release him from the discharge of his duties and still retain 
him in office, 97 Ind. loi; 59 Ind. 364. 

9. The mere fact of removal by a councilman from his ward does not 
vacate his office; but it furnishes a sufficient cause to authorize the council to 
declare his office vacant, and order a special election. 

10. An officer removed by the council does not hold until his successor is 
elected and qualified. 44 O. S. 98. 

11. The right to appoint a deputy marshal is limited to residents of the 
State, § 3043a. 



§§3043^—3043^] CITIES. [38 

Journal-Book Entry Conoerning Vacancy in Office of Councilman. 

VVhereas, A. B. was duly elected councilman from the ward of 

this city at the general city election held on the day of , iS — ; and 

Whereas, said A. B., after accepting such office, removed from said ward and 
is now no longer a resident thereof: therefore it is declared by this council 
that a vacancy exists in the office of councilman for said ward held by said 
A. B., and it is hereby ordered that a special election be held in said ward at 

the usual voting place therein, to Avit: At the court-house, on the 

dav of , iS — , between the hours of 6 a. m. and 6 p. m., for the purpose of 

filling said vacancy, due notice of which the clerk of this city is hereby directed 
to give bv publication for ten days in the Daily Argzcs. 

Special Election Notice. 

To the Voiers of Wai'd number of the City of ; 

You are hereby notified that a vacancy Avas declared on the day 

of , iS — . bv the common council of said city to exist in the office of coun- 
cilman of said ward, caused by A. B., duly elected and acting councilman 
thereof, removing from said Avard ; and at the same date said council ordered 
that a special election be held in said ward, at the usual voting place therein, 

to Avit, the court-house, on the day of , 18 — , betAveen the hours of 

6 a. m. and 6 p. m., to fill said A-acancy, and that upon said day, betAveen the 
hours aforesaid, a poll Avill be opened at said place for the purpose aforesaid. 

X.Y.. 

Clerk of the City of . 

[1SS9, p. 302. ApproA-ed ]March 9. 1SS9, and in force INIay 10, 1SS9.] 

Sec. 3043^. Qualifications of deputies, i. No sheriff of a 
county, mayor of a city, or other person authorized by law to 
appoint special deputies, marshals, or policemen in this State, to 
preserve the public peace and prevent or quell public disturbance, 
shall hereafter appoint as such special deputies, marshals, or police- 
men any person who shall not have resided continuously in this 
State for the period of one year at least, and in the county where 
such appointment is made for the period of at least six months, 
prior to the date of said appointment. [El. Sup. § 1959.] 

Sec. 3043^. Importing persons to serve as deputies unlawful. 2. 
It shall be unlawful for any person, company, association, or cor- 
poration to bring or import into this State any person or persons 
or association of persons for the purpose of discharging- the duties 
devolving upon sheriffs, deputy sheriffs, marshals, policemen, con- 
stables, or peace officers in the protection or preservation of public 
or private property or in the punishment of any person violating 
the criminal laws of this State. [El. Sup. § i960.] 

Sec. 3043r. Unautliorized person serving* as deputy — Penalty. 3. 
That any person or persons who shall in this State, without due 
authority, exercise or attempt to exercise the functions of, or hold 
himself or themselves out to any one as, a deputy sheriff, marshal, 
policeman, constable, or peace officer shall be deemed guilty of a 
misdemeanor, and upon conviction thereof shall, in the discretion 
of the court or jury, be imprisoned in the penitentiary for any 
period not more than one year, to which may be added a fine not 
exceeding one hundred dollars. [El. Sup. § 1961,] 



39] OFFICERS. [§§ 3043^—3047 

Sec. 3043^. Penalty. 4. Any person or persons violating any 
of the conditions of section one of this act shall, upon conviction, 
be liable to the same punishment as prescribed in section three. 
[El. Sup. g 1962.] 

[1S67, p. ^2>- Approved and in force March 14, 1867.] 

Sec. 3044. Oath of election boards. 9. Before the opening of the 
polls on the day of such election, the inspector and judges thus 
appointed, and the clerk, shall each and severally be sworn, by an 
officer authorized to administer oaths, to the faithful discharge of 
their respective duties as officers of such election. 

This section is a continuation of the duties of § 3037. See §§ 4692, 4693. 

Sec. 3045. Law of city elections. 10. All elections of such cities 
shall be governed by the laws in force regulating township and 
other elections ; and the voters therein shall have the like qualifi- 
cations and be subject to the same restrictions and liabihties. 

City elections are now governed entirely by the general election law of 1889, 
§ 47IOw^, so far as applicable. 

Sec. 3046. Canvass of votes, ii. When the poll of any such 
election is closed, the inspector and judges thereof, in each of said 
wards, shall immediately proceed to canvass the votes therein given, 
and shall make out, under their hands, a statement specifying the 
number of votes each person voted for has received, and the office 
designated thereby to fill ; and said statement, together with the 
poll-list and one of the tally-papers, shall be deposited with the 
inspector, or, if he should be unable to further serve, with one of 
the judges elected by such board of election. 

See §§ 470917 and 4710. Under this section the inspectors and judges are offi- 
cers of the law ; and their duties are ministerial and not judicial. Mandate lies 
to compel them to canvass the A-otes and make out a statement of the result, 39 
Ind. 488. 

Sec. 3047. Inspector's certificate. 12. The inspectors named in 
such appointment, if at the first election, or the inspector ap- 
pointed as hereinafter provided, if at a subsequent election, of the 
several wards shall, on the day next following the same, meet at 
the common council room, and, upon the inspection of the state- 
ments aforesaid, determine the persons having the highest number 
of votes for each of the several offices voted for ; and thereupon 
shall m.ake and sign a certificate, setting forth the names of the 
persons voted for and for what offices, the whole number of votes 
given for each of the several offices, and the person having the 
highest number therefor, and shall declare the person elected to 
the same. Such certificate shall be filed with the clerk of the cor- 
poration. Should two or more persons have an equal and the 
highest number of votes for the same office, such board of inspect- 
ors shall certify the fact to the trustees or common council, as the 
case may be, who shall immediately give notice, as in other elec- 



§ 3047] 



CITIES. 



[40 



tions, for a new election, specifying the office to be filled thereby 
and the ward, if a councilman, in which the poll is to be opened. 

1. The pozvers of a board of canvassers of a city election are onlj 7>iinis- 
terial under*this section; it is not competent for them to hear evidence as to 
irregularities at an election, 59 Ind. 152. Ma?idate lies to compel them to can- 
vass the vote and issue a certificate, 39 Ind. 488. The proper mode of attacking 
the validity of an election is bj mandate, 34 Ind. 425. 

2. The certificate serves the purpose of a commission. The result of the 
election need not be entered of record in the journal -book, though such is the 
usual course. 

3. For contest, see §§ 4756 to 476S. 



Election Certificate. 



The undersigned, inspectors for the general election held in and for the 



citv ot 

tifv that tht 



State of Indiana, on the 



day of 



result of said election was as follovrs, to v.'it: 



1 8 — , hereby cer- 



Xame of person voted for. I For what office. 



"Whole number 
of votes. 



Person having highest 
number ojfvotes. 



We, therefore, declare that, according to the above statement, the result of 
the election is as follows: 

That for the ofiice of mayor of said city • was duly elected. 

That for the office of clerk thereof was duly elected, etc. 

( Signed) 



Certificate of Tie Vote. 



To the Common Council\o7'^ Board of Trustees] of the City [or, Toivji] of : 

The undersigned, inspectors of the general election held in the city [or, 

town] of , State of Indiana, on the day of , 18 — , for the 

election of officers of said city, hereby certify that for the office of clerk A. B. 

and C. D. had an equal and the highest number of votes for said office, to wit: 

A. B., '-. 

CD., . 



Journal-Book Entry for Special Election. 



Whereas, an election for city officers was held in this citv on the 

day of , 18 — ; and. 

Whereas, it appears by the certificate of the election inspectors thereof, duly 
certified to this council, that A. B. and C. D. received an equal and the highest 
number of votes for the office of clerk of this city; therefore. 

It is hereby ordered that a special election be held in this citv between the 



4l] OFFICERS. [§ 3048 

hours of 6 a. m. and 6 p, m., on the day of , 18 — , for the purpose 

of electing a clerk of this city; such election to be held at the usual voting 
places, due notice thereof to be given by the clerk by publication for ten days 

in the Daily Argus, to wit: 

In Precinct Number One, Ward Number Six. At the Court 
House, etc. 

Notice for Special Election. 

To the Voters of the City of ; 

Notice is hereby given that at the general election held in said city on 

the day of , iS — , for the purpose of electing officers thereof, A. B. 

and C. D., as appears by the certificate of the election inspectors of such elec- 
tion, duly certified to the common council of said city, received an equal and 
the highest number of votes for the office of clerk of said city ; and that on the 

day of , 18 — , said common council ordered that a special election 

be held at the usual voting places of said city, on the day of , 18 — , 

between the hours of 6 a. m. and 6 p. m., for the purpose of electing a clerk of 
said city for the next and ensuing term thereof, viz.: 

In Precinct Number One, Ward Number Six, at the Court House, etc. 

Notice is therefore given that, at the places and upon the time aforesaid, 
polls at said places will be opened for the purpose aforesaid. 



Clerk of the City of . 

Journai-Book Entry of Result of Election. 

Be it remembered, that at an election held in this city on the day 

of — , 18 — , for the purpose of electing officers [or, to fill the vacancy in the 

office of councilman for Ward Number ,] for said city for and during 

their several ensuing terms, \or, for the term of office of said councilman,] it 
appears from the certificate of the election inspectors filed in the clerk's office 
that A.B. was duly elected mayor; C. D. was elected clerk, etc. 

Sec. 3048. Motice to persons elected. 13. It shall be the duty of 
the clerk of such municipal corporation, within twenty-four hours 
after filing the certificate of the board of inspectors in his office, as 
provided in the preceding section, to notify, either by personal 
service, or by leaving a copy of the same at the usual place of resi- 
dence, each and all of the persons elected to fill the said offices. 

This notice is required when a vacancy is filled. A written notice handed to 
the person elected, or perhaps left at his place of residence, is a personal notice. 
The notice must be in writing, for it constitutes the officer's commission. See 
§ 3095. The oath is upon the back of the commission, § 3095, and form. 

Certificate and Notification of Election. 
To A. B.: 

You are hereby notified, and I hereby so certify, that at the election 

held in the city of , State of Indiana, you Avere duly elected clerk of said 

city for the next and ensuing term, as appears from the certificate of the election 
inspectors now on file in my office. 

In testimony whereof, I have hereunto set my hand and the seal of said city 

of , this day of , 18 — . 

X. Y., 

Clerk of the City of . 

[See, also, § 3095 for a notice and form of oath.] 



§§ 3049' 3050] • _ CITIES. [42 

Sec. 3049. Penalty for refusal to serve. 14. Any person thus 
elected who shall not, within five days after being notified by per- 
sonal service of the same, take and subscribe the oath of office be- 
fore some proper officer, and file the same with the clerk of such 
corporation, shall be deemed as having refused to serve, and shall 
forfeit, for the use of such city, therefor the sum of ten dollars, 
provided he is not prevented from so doing by sickness or un- 
avoidable accident ; which forfeiture shall be recoverable on com- 
plaint filed in the name of the city against the party so failing to 
serve. 

The amount oi th.^. penalty assessed is paid into the general fund of the city. 
The process is a summons. The oath must be in writing, filed with the clerk, 
k 3095- Unless taken, the officer can not justify, i R. I. 292; 7 S. & R. 387; 5 
Whart. (Pa.) 541; but third person acting in good faith with him will be pro- 
tected, 24 N. J. L. 409. 

Complaint. 

[ Caption.'] 

The citv of complains of A. B. and says: That upon the 

day of , 18 — , at a general [or, special] election held in said city for the 

purpose of electing officers for said city [or, for the purpose of filling a vacancy 
in the office of mayor of said city], said A. B. was duh' elected, and it Avas so de- 
clared bv the board of inspectors of said election, mayor of said city for the next 
and ensuing term, a certificate of said election said board duly made out, signed 
and filed with the clerk of said city; and that within, twenty-four hours after 
the filing of said certificate of election of said board of inspectors in the office 
of and with the clerk of said city, said clerk personally notified said A. B.. that 
he had been duly elected mayor as aforesaid; but said A. B. did not within five 
days after having been so notified, nor has he at any time since such notifica- 
tion, taken and subscribed the oath of offi.ce of mayor of said city, and has not 
filed the same with the clerk of said corporation. 

Vv^herefore said city demands damages in the sum of ten dollars, and prays 
for all other proper relief. 

R. S., 

Attorney for the Plaintiff. 

Form of Oath. 

State of Indiana^ Cotintv of , .<r^. 

I, A. B., do solemnly swear [or, affirm] that I will support the consti- 
tution of the United States, the constitution of the State of Indiana, and that I 
will faithfully and impartially discharge the duties of the office of mayor of 

the citv of during my continuance in office. So help me God. 

A. B. 

Subscribed and sworn [cr, affirmed] to before me this dav of , 

18—. 



[For another form of oath see § 3095.] 



C. D., 

Xotarv Public. 



Sec. 3050. Vacancies. i6. Vacancies in the office of mayor, 
city judge, clerk, or councilman, occurring in any manner, shall be 
filled by special election ordered by the common council, and con- 
ducted in the same manner as the annual elections therefor ; and 
all vacancies in the other offices shall be filled by the common 
council. 



I 



43] OFFICERS. [§§ losoa — 3050^ 

1. A councilman elected to fill a vacancy is entitled only to hold the office 
during the unexpired term of his predecessor, 28 Ind. 248 ; and the same is true 
of all city offices, § 3050c. 

2. See § 159 for vacancies; and § 156 for abandonment. The above section 
is practically repealed by §§ 3050a and 3050*^. 

3. The council can not order an election unless a vacancy actually exists, 
113 Ind. 434. An office is vacant according to whether it is occupied by one 
Avho has a legal right to hold it and to exercise the powers and perform the 
duties pertaining thereto, 113 Ind. 434. An existing office without an incum- 
bent is vacant, 7 Ind. 326. It is presumed that a term of office ended at the ex- 
piration of the time for which the officer was elected, though he may serve 
until his successor is elected and qualified. His acts after such time will be 
presumed imauthorized, unless it affirmatively appear that a successor was not 
elected or qualified, 73 Ind. 175. A vacancy may be filled without a judicial 
determination of the fact of vacancy, 19 Ind. 356. 

4. Resis;nations of officers must be filed with the clerk, R. S. 1881, § 5557^ 
clause 5. If a resignation is to take effect at once, it can not be withdrawn, even 
with the consent of the clerk, after it is filed, 43 Ind. 105. 

5. If the council declare a vacancy when there is none, and appoint a per- 
son to fill it, the old officer acquiescing therein, the appointee becomes a de facto 
officer, and the fact that no vacancy existed can not be pleaded by his sureties 
in an action on his bond, 88 Ind. 324. 

[1891, p. 33. Approved February 26, 1891, and in force June 3, 1891.] 

Sec, 3050^. Vacancies, how filled, i. All vacancies in the office 
of mayor, clerk, or councilman of any incorporated city occurring 
in any manner shall be filled by appointment by the common 
council of such city. 

See § 3060 for large cities. 

Sec. 3050(^. Length of term. 2. Such appointee shall hold 
office until the election and qualification of his successor, who shall 
be elected at the next general election after such vacancy. 

These sections modify § 3050, and almost repeal it. 

Appointment. 

Whereas, a vacancy has occurred in the o^cq of mayor of this said city 

of , by the resignation {or, abandonm.ent] of said office'by A. B., [cr, by the 

death of A. B.,] the duly elected and acting mayor thereof; therefore, 

C. D. is hereby appointed mayor of this said city to fill said vacancy in said 
office until the next general election, and until his successor is elected and 
qualified. 

[i R. S.1852, p. 512, Approved May 13, 1852, and in force May 6, 1S53.] 

Sec. 3050r, Term. 7. Every person elected to fill any office 
in which a vacancy has occurred shall hold such office for the un- 
expired term thereof. [R. S. 1881, § 5567.] 

[i R. S. 1852, p. 166. Approved June 9, 1852, and in force May 6, 1853. j 

Sec. 3050^. Failure to give bond. 9. If any officer of whom 
an official bond is required shall fail, Avithin ten days after the com- 
mencement of his term of office and receipt of his commission or 
certificate, to give bond in the manner prescribed by law, the office 
shall be vacant. [R. S. 1881, § 5527.] 

To create the vacancy, ten days must elapse after the actual receipt of the 
commission, or there must be a failure to receive it, tmder such circumstances 



§§3050^—3053] CITIES. [44 

as shoAv, either that the person does not intend it, or, by his o^vn act, intends to 
postpone the time of giving bond. 27 Ind. 496; 99 Ind. 312; 100 Ind. 489; 7 Ind. 
204. The mere failure to file the bond does not ipso facto amount to a vacation 
of the office; and at any time before action is taken to have a vacancy declared, 
the person elected may file his bond and assume the office, 8 Ind. 134"; 10 O. 51; 
33 Ala. 674. 

[R. S. 1S52, p. 512. Approved !slay 13, 1S52, and in force ]^.iay 6, 1S53.] 

Sec. 3050^. Oath, rights, and duties of appointGe. 6. A person 
temporarily filling a vacancy shall give such bond, take such oath, 
have the same rights, and perform the same duties as the officer 
v/hose place he fills. [R. S. 1881, § 5566.] 

[iSSi, p. 14. Approved and in force ^March S, 1S81.] 

Sec. 3051. Large cities, i. Any city incorporated under the 
laws of the State, and having a voting population of fifteen thou- 
sand votes or more, as shoAvn by the poll-books of any general 
state election, shall be governed by a common council and board 
of alderm.en. 

There is no city in the State to which this statute is now applicable. It 
formerlv applied to Indianapolis : but that city is now governed by the act of 
1S91. 

Sec. 3G52. CoTincilmen. 2. Such city shall be divided, by the 
common council, into Avards containing as nearly as possible equal 
numbers of voters. Xo Avard shall contain less than six hundred 
voters, nor shall any city be divided into more than twenty-five 
wards ; and each ward shall be entitled to one councilman, who 
shall be elected on the first Tuesday in IMay, in the year 1881, and 
shall serve until the first day of January, 1884; and whose suc- 
cessor shall be elected on the second Tuesday in October, 1883, 
and biennially thereafter, and whose term of office shall be tAvo 
years fromi the first of January next folloAving, and until his suc- 
cessor is elected and qualified. 

Sec. 3G53. Aldermen. 3. Any such city shall be divided by 
the common council into five aldermanic districts, formed of an 
equal number of contiguous Avards ; and tAvo aldermen shall be 
elected in each district, Avho shall be freeholders in the district 
Avhich they are elected to represent, and one of Avhom shall be 
elected on the first Tuesday in ]\Iay, in the year 1881, and AA'ho 
shall serA'e until the first day of January in the year 18S4, and 
until his successor is elected and qualified. On the second Tues- 
day in October, 1883, and biennially CA^er after, there shall be 
elected two aldermen from each aldermanic district, Avhose term 
of office shall begin on the first day of January after such election, 
and AA^ho shall serve" for two years, and until their successors are 
elected and qualified. In case of vacancies in the board of alder- 
men, the person elected to fill such vacancy shall serve only the 
unexpired term of his predecessor. Any member of the board of 
aldermen may, by seven Azotes, be expelled for malfeasance in 
office, but not a second time for the same ofiense : Proz'ided, That 



45] LARGE CITIES. [§§ 3054, 3055 

each alderman elected on the first Tuesday in May, 1880, shall 
hold his office until his successor is elected and qualified. 

Elections under this section are governed by the general election law of 
1SS9, § 4710;;/. Filling vacancy^ see 28 Ind. 248, and § 3050^. 

Sec. 3054. Legislation— Elections. 4. Concurrent action of the 
common council and board of aldermen shall be necessary for the 
passage of any ordinance, order, resolution, or motion for the 
appropriation of money or for the government of such city. For 
the appointment of such officers and boards as are appointed from 
the members of the common council, and required or authorized 
by act of the general assembly or ordinances of the city, the com- 
mon council and board of aldermen shall meet in joint convention, 
in the council chamber, on the first Friday evening after the first 
annual meeting of the common council, at eight o'clock, and shall 
proceed to the election of such officers and boards by ballot, and 
such joint convention may adjourn from time to time until its work 
is completed; and all such officers and boards so elected shall 
serve during their term of office as councilmen, and until their 
successors are elected and qualified. And for the appointment of 
ail other officers, commissioners, trustees, and boards required or 
authorized by act of the general assembly or ordinances of the 
city, the common council and board of aldermen shall meet in 
joint convention, in the council chamber, on the second Monday 
evening in November after the first annual meeting of the common 
council, and shall proceed to the election of such officers, commis- 
sioners, trustees, and boards by ballot; and such joint convention 
may adjourn from time to time until its v/ork is completed. All 
such of^cers, commissioners, trustees, and boards, so elected, shall 
serve for two years from the first day of January after their elec- 
tion, and until their successors are elected and qualified, unless 
sooner removed according to law. Provided, That no member of 
the board of aldermen shall be elected to serve on any board 
elected by such joint convention. 

This section does not authorize the creation of a " lire board," empowered 
v/ith the duties of the chief of the fire department, to the exclusion of such 
chief,. 100 Ind. 15. The joint action of the two houses are necessary to remove 
an officer, 18 Bull. 340; 9 Bull. 175. The two bodies in joint session constitute 
one assembly, and a majority of the total number of members in both bodies 
form a quorum, 29 N. H. 213 ; 44 N. H. 465; 10 Wend. 612; 22 N. Y. 12S. 

Sec. 3055. Separate action. 5. The powers and duties of the 
common council, as defined in act of March 14, 1867, and subse- 
quent acts, shall remain in force under this act, except that the 
concurrent action of the board of aldermen shall be required in all 
cases, except in regard to qualification of its members and its order 
of business, to give effect to its action ; but all ordinances, orders, 
resolutions, or motions for the appropriation of money or for the 
government or regulation of such city shall originate in the com- 
mon council; and upon all questions, except as herein provided. 



\ 



§§3056—3061] CITIES. [46 

the action of the common council and board of aldermen shall be 
separate and distinct. And no ordinance, resolution, or motion 
providing for joint committees of the two bodies shall be passed; 
and no ordinance, order, or resolution shall become the law or be 
operative, until it has been passed by both bodies, and been signed 
by the mayor and president of the board of aldermen, and promul- 
gated according to law. 

An ordinance which may result in the expenditure of money may originate 
in either house; to make its introduction, first, in the common council neces- 
sary, the expenditure of money must be dh^ectly involved, 39 O. S. 645. Thus, 
in the case cited, an ordinance designating the route for a street railway, and 
directing the clerk to advertise for bids to construct and operate it, was held 
not within the inhibition of a similar statute. 

Sec. 3058. Officers — Election. 6. All officers of any such city 
elected on the first Tuesday in May, 1881, shall serve until the first 
day of January, 1884; their successors shall be elected on the sec- 
ond Tuesday in October, 1883, and biennially ever after, to serve 
two years, and until their successors are elected and qualified. 

Sec. 3057. President of board. 7. A president of the board of al- 
dermen shall be elected by the board at their first annual meeting 
after each general election ; [and also a president /r^? tempore], who 
shall, in case of absence or disability of the president, perform all 
his duties. 

Sec, 3068. Records— Journal. 8. The city clerk shall have charge 
of the books and records of the board of aldermen ; and all meetings 
of the board of aldermen shall be public ; and the minutes and rec- 
ords thereof shall be kept by a deputy clerk, appointed by the 
city clerk and approved by the common council and board of al- 
dermen, and who shall keep a journal of all proceedings, and enter 
the ayes and noes on any ordinance, order, resolution, or motion, 
at the request of any two members. 

Sec. 3059. Pay of members. 9. The common council and board 
of aldermen shall determine, by ordinance, the compensation to be 
paid the members of each body : Provided, That such compensa- 
tion shall not exceed the sum of two hundred dollars per year to 
each person. 

Sec. 3060, President of board, when acting-mayor. 10. In case of 
removal, death, resignation or non-election of mayor, the duties of 
the office of mayor shall devolve on the president of the board of 
aldermen until a mayor is chosen and qualified according to the 
provisions of this act. 

The council now fill a vacancy in the ofiice oi mayor, clerk, or councilman, 
who holds until the next general election. § 3050^ arid § Z^SqI>- 

[1881 S., p. loS. Approved and in force April 15, 18S1.] 

Sec. 3061. Sewer tax and districts, i. In all cities organized 
and incorporated under the general laws of this State, having a 
common council and board of aldermen, such common council and 



47] mayor's duties and powers. [§ 3062 

board of aldermen shall have power to levy, and cause to be as- 
sessed and collected, in each year, a tax, to be designated as a 
sewer tax, on all property subject to state and county taxation in 
such city; and the cost of the construction, maintenance, or repair 
of any or all sewers or drains of an internal diameter of more than 
three feet may be paid out of such sewer tax. And such common 
council and board of aldermen shall also have power to create and 
divide such city into sewer districts; and the cost of the construc- 
tion, maintenance, and repair of any or all sewers or drains in each 
district shall be paid out of the sewer tax of such district : Pro- 
vided, however. That where a sewer or drain extends into or through 
more than one district, the cost of the construction, maintenance, 
or repair thereof may be paid out of the sewer tax of such districts, 
in such proportions as the common council and board of aldermen 
may direct. And such common council and board of aldermen 
shall have power to enact such by-laws and ordinances as may be 
necessary to carry into effect the powers herein conferred. 

When the city is divided into districts, the sewer tax collected from that 
district must be kept separate in its collection. For sewers see § 3106, clause 
43, and § 3151. 

[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3062. Mayor's duties and powers. 17. It shall be the duty 
of the mayor to see that the laws of the State and the by-laws and 
ordinances of the common council be faithfully executed within 
such city. He shall be a conservator of the peace, and, as such, 
shall have, within the city limits, the power conferred upon justices 
of the peace for that purpose. He shall exercise supervision over 
subordinate officers, and recommend to the common council such 
measures as he deems for the public good. He shall sign all com- 
missions, licenses, and permits granted by the common council ; 
and he shall perform such other duties as the nature of his office 
and the interests of the city require. He shall have the custody 
of the corporate seal ; and may take and certify, under the same, 
the proof and acknowledgment of deeds and other instruments in 
writing, which shall be good in any court in this State without 
further authentication ; he may also take and certify depositions 
and affidavits, and the same shall have a like force and effect as if 
taken by a justice of the peace. He shall hold a city court every 
day, Sunday excepted, at a place to be furnished by the common 
council ; while sitting as such court, he shall have exclusive juris- 
diction of all prosecutions for violation of the by-laws and ordi- 
nances of the city and tovv^nship in which such city is situated. He 
shall have, within the limits of said city, the jurisdiction and powers 
of a justice of the peace in all matters, civil and criminal, arising 
under the laws of this State ; and for crimes and misdemeanors, his 
jurisdiction shall be co-extensive with the county in which such 
city is situated : Provided, That, in trials before him, he shall have 
pov/er to adjudge imprisonment as a part of his sentence, not ex- 



§3062] CITIES. [43 

ceeding thirty days, in the city or county prison. In all actions in 
the city judge's or mayor's court, either party may have a trial by 
jury, a change of venue to a justice of the peace in such city, and 
an appeal to a court of competent jurisdiction, under the same re- 
strictions and in the same manner as in a justice's court; except 
that in cases where the m^ayor has exclusive jurisdiction no change 
of venue shall be allowed. The same rules of pleadings and prac- 
tice shall be observed in the city judge's or mayor's court that are 
in a justice's court. The mayor shall give bond, payable to the 
State of Indiana, in any penal sum not less than three thousand 
dollars, to be approved by the clerk of the circuit court, with free- 
hold security, conditioned for the faithful performance of his duties 
as mayor and all other duties herein required, and file the same 
with the clerk of the circuit court within the time directed by law 
for justices of the peace. All fines and penalties collected by him 
shall be paid into the city treasury within one m^onth after the same 
shall have been received by him, in the kind of funds so received, 
except when otherwise directed by acts prescribing the duties and 
powers of justices of the peace ; in which case he shall pay all fines 
and forfeitures collected by him for violation of the penal laws of 
the State into the county treasury, in the same manner and under 
the same restrictions that justices of the peace are required to do. 

1. As to mayor's bond, see also § 3095. For froseciitions under city ordi- 
nances, see § 3066, notes. 

2. The authority of the major as a conscr-cator of uie ^pcace is limited to the 
boundaries of the city, 44 O. S. 137. 

3. The power to exercise siipervisio7i over a subordinate officer does not 
give him authority to remove him. 

4. The clerk is entitled to have access, to the corporate seal for the purpose 
of authentication, see § 306S. The mayor's use of the seal is onlv as mavor and 
not as a justice of the peace; consequently on an appeal from a conviction for a 
violation of the criminal lav^s of the State, the transcript need not be authenti- 
cated by the seal of the city. In such a prosecution he acts as a iustice of the 
peace, 64 Ind. 226. 

5. The mayor signs the comxmissions of all officers elected by the com.mon 
council. For the election of such officers, see § 309S. 

6. The mayor formerly had ey^clns'ive jurisdiction of all cases brought for 
violations of city ordinances, notwithstanding the act authorizing the election 
of a city judge, 50 Ind. 569. Biit the act of 1891 changed this rule, see 6 3206. 
His civil jurisdiction is limited to the city, 103 Ind. So. He may try a bastardy 
action, 16 O. S. 624. His criminal jurisdiction runs throughout the countv, 13 
Ind. 538; 14 Ind. 93. 

7. For imprisonment., see § 3067, note. 

S. The practice before the mayor in civil actions is governed \ix the act re- 
lating to justices of the peace in" civil proceedings. See R. S. iSSi, §§ 1431 to 
1572; 103 Ind. 80; in criminal actions by the act relating to them in criminal pro- 
ceedings, see R. S. iSSi, §§ 1606 to 1647. 

9.^ The attorney general (acts 1S89, p. 126, § 9; EI. Sup. § 1S05) may 
examine his docket and collect fi7ies received by him as justice and not paid 
over within the time required by law;, so the county superintendent may also 
do likewise. See § 4435- Fines received by him for violations of city ordi- 
nances go to the general city fund, except when assessed for certain immoral 
crimes, when they go to the trustees of the Home for Friendless Vromen. 
§ 6246. 



49J 



MAYOR S DUTIES AND POWERS. 



[§ 3063 



10. He has no power to receive a sum of money in lieu of bail^ unless ex- 
pressly authorized by a statute so to do, but, if he does, and the money is de- 
clared forfeited and is paid into the treasury, it can not be recovered back by the 
depositor, 41 O. S. 602; i O. C. C. 289. 

11. The mayor has power to punish one committing a co7itemft of his court 
while in session, 46 Ind. 537. 

12. If he declines \o grant a change of vemie in a criminal case when a 
proper affidavit for it is filed, his judgment of conviction will not be void, 26 N. 
E. Rep. 762. 



State of I/idiana, 



Report of Fines by Mayor. 

Cou7Jt\' ss : 



mayor of the city of ■ 



in and for 



County, Indi- 



ana, hereby certify that the following fines were collected by me from the 
day of ■ , 18 — , to the day of , 18 — . 





Xamcs of Plaintiffs. 


Xames of Defendants. 


Amount. 











































Witness my hand and seal, this day of 



iS— . 



Seal.] 



Mayor of the City of - 

State of India?ia, County^ ss: 

I do solemnly swear that the within is a true account of ail the fines col- 
lected by me from the day of , 18—, to the day of • 

18 — ; so help me God. 



Subscribed and sworn to before me, this day of 



1 8- 



Treasurer. 



Sec. 3063. Docket fees. Vacancies. i8. The mayor or city 
judge shall keep a docket, as justices of the peace do. And, in the 
case of the absence of such mayor or city judge from the city for 
the space of five days or more, or of inability, in consequence of 
sickness or other cause, for a like period, he shall, prior to such de- 
parture in the first case, and at the expiration of five days in the 
last case (if his inability continue), deposit, or cause to be depos- 
ited, his docket with any justice of the peace within said city ; and 
such justice shall, during such absence or inabihty, be vested with 
and exercise all the judicial powers and authority of said mayor or 
city judge, and be entitled to his fees and emoluments therefor. 
The mayor or city judge shall be entitled to the same fees as jus- 
tices of the peace. In case of vacancy in the office of ma}'or or 
city judge, by death, resignation, or otherwise, the council shall 
cause his docket to be placed in the hands of some justice of the 
4 



§30D3] CITIES. [50 

peace in said city, who shall act as and have all the judicial powers 
and authority cf such mayor or city judge, until the vacancy can 
be supplied by special election ; and the official bond of such jus- 
tice shall embrace all his official acts in such capacity : Provided, 
That all fees herein provided for the mayor or city judge shall be 
paid to such mayor or city judge for the use and benefit of such 
city; which fees the mayor or city judge shall pay into the city 
treasury, once in every three months, for the benefit of the general 
funds of said city. The mayor or city judge shall draw no salary 
from the city treasury until he shall have filed with the city clerk 
or auditor a relinquishment and transfer to such city of all taxable 
fees allowed him by law in cases cognizable before him for alleged 
violations of the ordinances or by-laws of such city. In any city 
containing a population of less than ten thousand, the mayor may, 
at any time, with the consent of the common council, deposit his 
docket with any justice of the peace of such city, who shall there- 
upon act as, and have all the judicial powers and authority of such 
mayor during such time as the mayor may continue such docket 
in the hands of such justice. 

1. By the deposit of the mayor's docket with a justice of the peace, the lat- 
ter possesses all the jurisdiction of the former, in addition to that of his own. 
The fact of the possession of the mayor's docket bv a justice of the peace is con- 
clusive of his authority to act in the absence of the mayor from the court-room 
where the trial is being held. The authority of such a justice is limited to the 
mayor's "judicial" powers: and does not otherwise authorize him to act as 
mayor, even in case of a vacancy in the office. Usually the mayor has two, and 
sometimes three, dockets. One for criminal cases; the second for city penal 
cases, and the third for civil cases. How docket is kept, see R.S. 1881, § 1437. 
Under R. S. 1881, § 5779, a mayor is not entitled to a docket furnished by the 
county commissioners. The mayor may resume his docket at any time. 

2. The usual practice is for the common council to allow the mayor the 
fees he receives as a part of his salary, when the latter is fixed. See § 3105. Un- 
less it is so done he is liable on his bond to the city for them. See 17 6. S. 48 
and 7 O.S. 237. 

Release of Fees. 

To All Wliom it May Concern: 

I, C. D., mayor of the city of , in the State of Indiana, hereby 

relinquish and transfer to said city "all taxable fees hereafter assessed, and which 
is allowed me by law as such mayor in all cases cognizable before me during 

my term \or, during the year ending on the day of , 18 — ,] for 

violations of the ordinances and by-laws of said city. 

Consent Xo Transfer of Docket. 

This council hereby consents that C. D., mayor of this city, may de- 
posit his docket with A. B., a justice of the peace of this city during the re- 
mainder of said C. D.'s term of office {or, so long as said C. D. may see fit to 
permit it to so remain with said A. B.]. 

Order placing Docket in Justice's possession. 

Whereas C. D., on the day of , 18—, resigned the office of 

mayor of this city; therefore, 

It is hereby ordered that the clerk of this city take possession of his docket, 
and of all papers appertaining thereto, and place the same in the hands and 
possession of A. B., a justice of the peace of this city. 



5i] mayor's duties and powers. [§3063^ 

[1S75 S., p. 31. Approved March 12, 1S75, ^^^ ^^ force August 24, 1S75.] 

Sec. 3063^. Fees of justice of peace and mayor. 24. The fees 

of the justices of the peace shall be as follows : 

For each summons or capias, twenty-five cents. 

For every examination on a criminal information on oath, fifty 
cents. 

For swearing each witness, five cents. 

For every warrant in a criminal cause, twenty-five cents. 

For every trial, on complaint for unlawful detention of lands or 
tenements, one dollar. 

For issuing every attachment for contempt, twenty-five cents. 

For taking acknowledgment of a deed or power of attorney, 
twenty-five cents. 

For order for removing pauper from county, fifty cents. 

For certifying description of a boat adrift or an estray, thirty-five 
cents. 

For warrant of certificate of appraisement, twenty-five cents. 

For taking and certifying depositions, twenty-five cents. 

And for each one hundred words therein, ten cents. 

For each process required by law, and not herein enumerated, 
twenty-five cents. 

For every writing or record not herein provided for, every one 
hundred words, ten cents. 

For every trial on default, twenty-five cents. 

For every trial, where defense is made, one dollar. 

For each additional day occupied in trial, after the first, one 
dollar. 

For certifying copies of all proceedings, for each one hundred 
w^ords, ten cents. 

For entering continuances, ten cents. 

For every bond or recognizance, twenty-five cents. 

For every venire for summoning a jury, twenty-five cents. 

For subpoenas for witnesses, to include all called for at one time, 
twenty-five cents. 

For each transfer, assignment, or docket of judgment, twenty- 
five cents. 

For issuing execution, twenty-five cents. 

For each oath not herein otherwise provided, five cents. 

For rendering every final judgment, twenty-five cents. 

For trial of right of property and judgment, one dollar. 

For swearing jury, ten cents. 

For making up docket, for every one hundred words, ten cents. 

For each wTit of attachment against property, twenty-five cents. 

For making return of fines, for each mile necessarily traveled, to 
be paid out of the county treasury, ten cents. 

For transmitting papers in case of appeal, twenty-five cents. 

For writing an affidavit, twenty-five cents. [R. S. 1 88 1 , ^ 65 5 5 .] 



§ 3064] CITIES. [52 

[1S67, p. 33. Approved and In force Tvlarch 14, 1867.] 

Sec. 3084. Suits by city, what averments unnecessary. 89. 

Whenever any suit shall be instituted by such city, it shall not be 
necessary to aver its corporate organization or the publication of 
its by-laws or ordinances, unless the same is contradicted by affi- 
davit. 

1. The production of certificate of the election inspector filed in the office 
of the clerk of the circuit court (§ 3035) is conclusive evidence of the incorpora- 
tion of the city. § 3036, note. 

2. It seems pretty clear that this section intended to dispense both with an 
averment of the incorporation of the city and proof of that fact, as well as proof 
of the publication of the ordinance under which the suit is brought to recover 
the penalty. The intent is, however, unhappily expressed. Until the defend- 
ent is brought info court, he has no right to file an affidavit, and then only in 
answer to a complaint already on file. When it is then filed, it certainly can 
not be the intention of the legislature that the complaint must be amended in 
that particular, by the insertion of an averment of incorporation or publication 
of the ordinance. Evidently, when then filed (and it can not be done before), 
it has alone reference to proof of the fact of organization or publication. See 25 
Ind. 490. A defense predicated upon the invalidity of the ordinance must be 
brought forward by the defendant, 114 Ind. 77. 

3. Proof of the publication may be made by the affidavit of the printer, 29 
Ind. 354; or the papers containing it may be produced, their publication being 
shown by any one cognizant of that fact, 36 111. 301. And even a note upon the 
record of an ordinance, where such record is admissible in evidence, stating 
that it had been duly published, is prima facie evidence of the fact of publica- 
tion, 36 Kan. 740. See § 31QO. If publication was made by posting, then the 
marshal of the city, or any one cognizant of that fact, may be called as a witness 
to prove it; or the marshal's affidavit may be used, 29 Ind. 354. Proof of publi- 
cation may also be made by showing that the ordinance had been regularly 
published by the city in book or pamphlet form, § 3100; but the production of 
such a book is not sufficient evidence of the publication of an ordinance, where 
the publication has been denied under oath. 



Affidavit of Non-Publication. 



State of I?idiana.^ Coiinty of . .?.?. 

The City of vs. A- ■ — B , No. . 

A. B., defendant herein, upon his oath says, that the ordinance referred 
to in the complaint filed in this case and upon Avhich this prosecution is based, 
is not valid nor in force for the reason that it was never published two weeks 
consecutively before the commencement of this action in any newspaper 
printed in said city, after its adoption by the common council thereof; nor was 
there ever any written or printed copies of said notice posted up by the marshal 
of said city, nor by any one else, in five public places in each ward of said city 
for two weeks before the commencement of this action; nor did said common 
council ever make proclamation of the passage of said ordinance and cause, be- 
fore the commencement of this action, copies of the same to be posted up at five 
public places, or at any five places therein, in each of the wards of said city; 
nor was said ordinance ever published by said citj', for a period of two weeks 
before the commencement of the action, in any book or pamphlet form. 

A. B. 

Subscribed and sworn to before me this day of , iS — . 



Notary Public. 



I 



53] SUITS BY CITY. [§§3065,3066 

Sec. 3065. Suits ag^ainst railroads — Process — Judgment. 91. In 
all prosecutions against any railroad or other incorporated com- 
pany for the violation of any ordinance of the common council of 
any city, a summons may issue against the company and may be 
served on the president, superintendent, secretary, treasurer, sta- 
tion agent, or general agent ; and, upon the trial of the cause, judg- 
ment may be rendered against the railroad company for such pen- 
alty as may be adjudged ; or the conductors or other agents of the 
company guilty of the violations may be arrested by warrant, and 
may be proceeded against personally as in other cases. 

Sec. 3066. Actions for penalties. 19. All actions brought to re- 
cover any penalty or forfeiture incurred under this, act, or ordi- 
nances made in pursuance thereof, shall be brought in the cor- 
porate name of such city. The process in every such action 
shall be a warrant; and the person named in such warrant shall 
be arrested, and retained in custody, or under reasonable recog- 
nizance, until the next sitting of the city court; and it shall not 
be necessary to file with the affidavit or complaint a copy of the 
ordinance or section thereof charged to have been violated, but it 
shall be sufficient to recite in the affidavit or complaint the number 
of the section charged to have been violated, with the date of its 
adoption; nor shall it be necessary to copy any part of the affida- 
vit, complaint, or other pleadings in the record of the cause : Pro- 
vided, That the mayor shall note upon his docket the parties to the 
action, the title to the cause, the filing of the complaint or affidavit, 
the issuing and return of process, and the judgment and proceed- 
ings had in the cause, and the satisfaction of judgment when paid. 

The penalty can not exceed one hundred dollars, § 3155. 

1. For power of the marshal to arrest^ see § 3075, and notes. The statute 
does not require the mayor to direct the warrant to the marshal; it may be to 
a constable. So a justice of the peace acting as mayor may direct the process 
either to the marshal or a constable. 

2. The ordinance can be enforced only in the Avay pointed out in this sec- 
tion. 36 111. 177 ; 4 B. Mon. 146; 32 N. J. L. 262. 

3. The mayor had previously exclusive jurisdiction for the violation of city 
ordinances, notwithstanding the election of a city judge, 50 Ind. 569. See now 
<^32o6. 

4. The action is a civil action^ notwithstanding a warrant is issued, 7 Ind. 
688; 6 Ind. 281;. i Ind. 38, 315; i B. 341; 34 Ind. 239; 58 Ind. 518; and all the 
offenders need not be joined, 19 Ind. 271 ; it is in the nature of a tort. The same 
rules of pleading and practice obtain as in the court of a justice of the peace in 
civil cases, 34 Ind. 239; 58 Ind. 518. 

5. All defenses^ except the statute of limitation and matter in abatement, 
may be made without pleading them, 60 Ind. i. 

6. So long as the complaint complies with this section, it need not be more 
full nor technical than in a civil action commenced before a justice, 34 Ind. 239. 
The particular manner of its adoption need not be averred nor proved, 107 Ind. 
231. Both the section violated and the one containing the penalty must be set 
out, 34 Ind. 392; 90 Ind. 258. The complaint is sufficient if it informs the de- 
fendant of the nature of the cause of action, and is explicit enough that a judg- 
ment thereon will constitute a complete bar to another action ibr the same 
cause, 63 Ind. 468; 84 Ind. 276; 105 Ind. 540. Uncertainty in the statement of 
the charge must be taken advantage of on a motion to make the complaint more 



§ 3o66] CITIES. [54 

explicit, 63 Ind. 46S: 5S Indj 51S. The facts supposed to constitute a violation 
of the ordinance, \vhich is to say, the acts done or omitted by the defendant, 
must be stated Avith as much certainty as is required in a pleading in an action 
commenced before a justice of the peace, 84 Ind. 276 : 94 X. C. S80 ; 13 Oreg. 
587; 17 Wis. 26. Merely stating that the defendant violated a certain section of 
a certain ordinance is not sui^cient, 56 Ind. 305; 36 N.J. L. 283; 82 N.C. 532. 
It is not necessary that the complaint negative an exception in 2i proviso of the 
ordinance; this being a matter of defense, 16 Mich. 472 ; see 38 N.J.L. 69 ; 33 
N.J. L. 213; I Harr. (N.J.) 133. 

7. It is not necessary to set out the tvhole ordijiance^ nor its title, but only the 
section alleged to have been violated, -with the date of the passage of the ordi- 
nance, 25 Ind. 490; 114 Ind. 77; 125 ,Ind. 6; 26 N. E. Rep. 807; (contra, before 
present statute. 22 Ind. 192); the substance of the section need not be set out, 63 
Ind. 468. 

8. The court can not take judicial notice of the passage of the ordinance, 22 
Ind. 192; 23 111. 90; 19 Mo. 551; 30 Ala. 538: 14 La. Ann. 303; nor of its con- 
tents; but both the passage and the contents of the ordinance maybe shown by 
the production of the regular ordinance book after its identification, § 3099; 64 
Ind. 31, 40; or by the production of the book of ordinances purporting to have 
been printed by authority of the council, § 3100; by a certified copj, § 3068; 
or by a sworn copy, 25 Ind. 490. The city may call on the defendajit to 
testify, and if he declines to be sworn, judgment at once, for the full demand, 
must be entered against him. See R. S. 1881, § 14S0. But it can not by ordi- 
nance change the rules of evidence, i IMcCord (S. C), 333; 4 Scam. (111.) 
p. 78. 

9. Appeal lies to the circuit court under the same restrictions as if the 
action had been begun before a justice, 34 Ind. 239; and on such appeal the same 
rules of pleading and practice prevail as prevailed below, 103 Ind. 80. The 
mayor has no incidental power to execute an appeal bond, unless authorized bv 
the council, 21 Me. 50. 

10. The defendant can not enjoin the collection of a judgment on the 
ground that the date of the passage of the ordinance and the section violated 
are not given, 49 Ind. 329; nor because of the invaliditv of the ordinance, 3. O. 
C.C.545. 

11. On appeal to the circuit court the complaint may be amended (as Avell 
as in the mayor's court); but it is not error in that court to refuse to allow an 
amicnded complaint to be filed if it does not state a good cause of action, 58 Ind. 
268. The co7i-ciction must be for the same oftense; for which the defendant is 
prosecuted, 30 Ga. 517. 

12. The city is not liable for costs made before the mayor, whether it win or 
lose the case, see § 3078; but it is for all costs made by it on appeal if it win, 
and for all made by both it and the defense there if it lose the case, 34 Ind. 48. 

13. An appeal lies to the supreme court from the circuit court, and not to 
the appellate court, 26 N. E. Rep., however small may be the amount involved, 
if the validity (15 Ind. 447) of the ordinance is involved; but if its validity is not 
attacked, and the amount involved is less than fifty dollars, exclusive of interest 
and costs, the appeal will probably be dismissed.' So even where the validity 
of the ordinance is attacked, that court would probably decide no other question 
involved in the record, unless the amount involved, exclusive of interest and 
costs, exceeded fifty dollars. See R. S. 1881, § 632. See under the code of 18^2 
and amendments, 60 Ind. 327; 53 Ind. 483; 50 Ind. 28; 45 Ind. 234; 44 Ind. 476; , 
24 Ind. 321; 19 Ind. 84; 6 Ind. 46; i Ind. 38; 7 B. 135; 5 B. 168. 

14. If the damages are excessive, a motion for a new trial for that reason 
must be made, 31 Ind. 230; which the mayor can grant. 

15. Strangers, as well as citizens, are liable to the penal ordinances of a 
city, I Ind. 265; 4 O. 427. Every one is bound to take notice of its provision, 
I Levinz. 16; Cro. Car. 498. 

16. If the officers of the city by any positive acts induced the action of the 
adverse party complained of, and it would be inequitable to permit the citv to 
stultify itself^ by retracting what they had done, the citv will be estopped to'en- 
force the penalty of the ordinance, 94 111. 67; 64 111. 447: 79 111. 39: 81 111. 156. 



55] SUITS BY CITY. [§ 3066 

17. The corforaf^ existence of the city can not be attacked, 24 111. 22; 20 111. 
197; 23 111. 437; 10 la. 234; 50 111. 39; 46 111. 9; 95 Ind. 70. 

iS. Ordinances are construed by the same rules that statutes are, 68 Cal. 
294; 52 Ind. 411; courts will give to them a reasonable construction, 2 R. I. 154; 
5 Cush. 43S, 442; 6 Bing. N. C. 314, 323; 7 B. & C.83S; especially in view of 
their inartificial character, 26 Conn. 406. They are not tested by the strict 
rules applied to penal statutes, 4 La. Ann. 335; 14 La. Ann. 318; unless 
highly penal, i B. Mon. 261, (but see 79 Mo. 210.) 

19. Citizens of the city are competent jurors; and are not disqualified by 
reason of their interest as mere citizens thereof, 9 O. 290; i Gray, 475 ; 31 Mo. 
369; 5 Mass. 90; 25 W. Va. 266; i Rich. (S. C.) L. 364; 73 Ga. 484. 

20. The mayor can instruct the jury . Thornton on juries, § 466. 

21. If the accused has been arrested and given bail for his appearance on 
the day set for trial, the trial may probably proceed in his absence; but if he 
has not been arrested, he can not be brought into court by an ordinary sum- 
mons. The process must be a warrant; but a voluntary appearance will be 
sufficient. 

22. A person arrested can not be detained over eighteen hours, except upon 
a commitment by the mayor. See § 3075. 

Complaint for Violation of City Ordinance. 

Before the mayor of the City of . 



The City of , ) Complaint for. 



The State of Indiana^ County^ ss: 

The city of complains of , and says that on the day 

of , A. D. 18 — , at and in said county and State, and within the corporate 

limits of the said city of , the said defendant, then and there being, did 

then and there {describe xvith reaso7iable certainty the act done or omitted that 
it is deemed to have beeii a violation of the ordina7ice'\ contrary to and in viola- 
tion of section \or, sections] of an ordinance of said city, adopted by the 

common council thereof on the day of , 18 — , to the damage of 

said city, dollars. Wherefore the plaintiff demands judgment for 

dollars. 



City Attorney. 

being duly sworn upon h — oath says, that the matters and things 

alleged in the foregoing complaint are true as verily believes. 



Subscribed and sworn to before me this day oi , A. D. 18 — . 

[City Seal.] 



Mayor of the City of - 



Warrant. 



The State of Indiana^ County^ ss: 

City of to the City Marshal^ Greeting: 

You are hereby commanded to arrest and bring forth- 
with before me at my office, to answer the charge of having, on the day 

of , 18 — , at and in said county and State, and within the jurisdiction of 

said city, committed a violation of section [cr, sections] of an ordinance 

of said city, adopted by the common council thereof , as said city has 

complained on the oath of one , and have then and there this Avrit. 

Dated this day of A. D., 18—. 

[City Seal.] Mayor of llu: City of — — . 



§3066] 



CITIES. 
Marshal's Return. 



[56 



This 



I have arrested the above named defendant and have his body in court. 
day of , 18 — . 



Marshal's fee, $- 



-Uarsnal. 



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Recognizance Bond with Oath. 



Con7ity, State of Indiana. 



City of , — 

We, and , several!}' acknowledge ourselves bound to the 

State of Indiana in the sum of dollars each, if the said shall not 



at the city court room in said city, 



appear before the mayor of the city of — 

on the day of , 18 — , at 9 o'clock in the forenoon of said day, to 

answer a charge of at the county of , and State of Indiana;'and 

abide the judgment of said court, and not depart thence without leave of said 
court. 

Witness our hands and seals, this dav of , iS — . 



Attest: 



_[Seal.] 
.[Seal.] 
.[Seal.] 



Mayor. 



State of Itidia7ia^ 



Countw ss: 



I, , being duly sworn, upon my oath say that I 'am the owner in 

my own name and right of real estate, free from all incumbrances, situate in 

— '- County, State of Indiana, of the value of dollars. 

Witness mv hand, this dav of , 18 — . 



Subscribed and sworn to before me, this 



day of 



-, 18-. 



[Sureties not owning real estate can be accepted,] 



Xotary Public. 



57] SUITS BY CITY. [§ 3066 

Commitment. 

State of India7ia, County^ ss: 

To the Keeper of the Jail in said County^ Greeting: 

Whereas, , of the county aforesaid, has been arrested on the oath 

of for , and has been brought before me, , mayor of the 

city of , of said county [<9r, one of the justices of the peace in and for said 

county], for trial, which trial has been necessarily postponed, by reason 
of — ^ — . 

Therefore, I command you i.in the name of the State, to receive the said 
into your custody, in the jail of the county aforesaid, there to remain 



until discharged by due course of law. 

Given under my hand and seal, this day of , 18 — . 

[City Seal.] . . 



Mayor [or, J. P.] 
[See also § 3067,/brw.y. City seal is unnecessary when a justice commits.] 

Failure to Find Bail— Examination Had— Felony. 

State of India7ia, County^ ss: 

To the Sheriff of County^ Greeting: 

Whereas, has been arrested and brought before me, 



I 



mayor of the city of , charged with the crime of — at said county, 

and the said having had an examination before me and found guilty, and 

having failed to find bail in the sum of dollars, as required by me for his 

appearance from day to day of the present term of the circuit 

court, now then, you are therefore commanded to confine ihim in the county 
jail until discharged by law. 

Dated this day of , iS— . 

[City Seal.] 

Mayor [or, J. P.] 

Failure to Find Bail— Examination Waived— Felony. 

State of Indiana^ County^ ss: 

To the Sheriff of Coicnty, Greeting: 

Whereas, has been arrested and brought before me, , 

mayor of the city of , charged with the crime of at said county, 

and the said having waived an examination before me, and having failed 

to find bail in the sum of dollars, as required by me for his appearance 

from day to day of the present term of the circuit court, now 

then, you are therefore commanded to confine him in the county jail until dis- 
charged by law. 

Dated this day of , iS — 

[City Seal.] Mayor [or, J. P.] 

Subpoena. 

Mayor'' s Office^ City of . 



State of Indiana, County, ss: 

To the Marshal of the City of , Grceti^tg: 

You are hereby commanded to summon to personally be and 

appear before me, at my office, in the city of , on the day of , 

18 — , at o'clock — . m., of said day, to testify on the part of the in 



§ 3o66a] CITIES. [58 



a certain action now pending before me, wherein the cit}^ of is plaintiff, 

and defendant; and have jou then and there this writ. 

Given under mv hand, this the day of , 18 — . 

[Citv Seal.] . 



Mayor [or, J. P. 



Venire. 



Count v^ Tozvitshif, ss: 

The State of Indiana to , the Alarshal of the City of , said 

County [or, Constable of said Township^: 

You are hereby commanded to summon 

qualified voters of said township, to appear before me, mayor of the city of 

\or, a justice of the peace], at my office therein, at o'clock, — . m., 

on the day of next, to serve as jurors in a case pending before me, 

in which the city of is plaintiff, and defendant, then and there to 

be tried; and this said j'urors shall in no wise omit. And have you then and 
there this writ, with your doings thereon. 

Given under my hand and seal, this day of , 18 — . 

[City Seal.] 



Mayor \or, J. P.] 



Docket Entry. 



State of Indiana^ County^ ss: 

The City of ,vs, A B . No. — . 

On the day of , 18 — , the above named plaintiff filed a 

complaint herein against said above named defendant, and thereupon a warrant 
was issued for his arrest, returnable forthwith, and delivered to the marshal of 

said city \_or^ to C. D., a constable of township, of said county]; which 

warrant was returned the same day [or, on the day of , 18 — ,] in- 
dorsed as follows: " I have arrested the within-named defendant and now have 
his body in court," signed by said marshal \_or, constable]; and the defendant 
for answer says he is not guilty as chai-ged. 

Thereupon the parties being in court ready for trial, a jury was called consist- 
ing of twelve qualified voters of said city, to wit: 

to whom the issue was 



submitted for trial [or, a jury being waived, the issue Avas submitted to the court 
for trial.] Trial had. C. D. and E. F. sworn and examined as witnesses for the 
plaintiff, and L. S. sworn and examined as a witness for the defendant. After 
hearing argument of counsel, the jury retired and returned the following ver- 
dict, viz.: "We, the jury, find the defendant guilty as charged, and assess his 
fine at $ — ," [or, "we, the jury, find the defendant not guilty," or, "and the 
court having heard all the evidence adduced, and being sufficiently advised in 
the premises, finds the defendant \or^ not] guilty as charged in the complaint, and 
assesses his fine at $ — .] It is therefore considered and adjudged that the plaint- 
iff recover of and from the defendant $ — and costs taxed at $ — ; and if the said 
fine and costs be not paid or replevied forthwith, said defendant be committed, 
not exceeding thirty days to the city \or^ county] workhouse [of the county of 

, of State of Indiana,] \^or^ to the city prison of said city, or^ to the 

county jail,] and that he be required to pay the same by manual labor in said 
\vorkhouse \or^ on the streets and other public works of said city, under the 
control of the street commissioner \^or^ marshal] thereof,] at the rate of seventy- 
five cents \or^ when confined in vjorkhouse^ one dollar] per day. 



Ma5^or of the City of . 

[1881 S.,p.i74. Approved April 14, 18S1, and in force September 19. 1881.] 

Sec. 3066<a;. Crimes not punishable by city or town. Gj. When- 
ever any act is made a public offense against the State by any 
statute and the punishment prescribed therefor, such act shall not 



59] IMPRISONMENT. [§ 3067 

be made punishable by any ordinance of any incorporated city or 
town ; and any ordinance to such effect shall be null and void, and 
all prosecutions for any such public offense as may be within the 
iurisdiction of the authorities of such incorporated cities or towns, 
by and before such authorities, shall be had under the State law 
only. [R. S. 1881, § 1640.] 

1. This section is constitutional, 78 Ind. 316. It does not prevent a citj 
from requiring liquor dealers taking out a citj liquor license; nor from punish- 
ing them for not doing 50,90 Ind. 258, 262; 109 Ind. 466; 114 Ind. 77; but it 
does prohibit the city's passing an ordinance making it an offense to interfere 
with a policeman making an arrest, 115 Ind. 581. See, generally, 8 B. 361. 

2. Relative to certain nuisances, an exception is created under R.S. 1881, 
§ 2066, Proviso. 

[1867 P- ZZ' Approved and in force March 14, 1867.] 

Sec. 306t. Imprisonment — Stay. 20. If the penalty or for- 
feiture in which judgment is obtained be not paid or replevied, the 
defendant may be committed, for any period not exceeding thirty 
days, to the workhouse of such city, or, if such city have no work- 
house, then to the county prison of the county in which such city 
is situated; and in the latter case, it shall be the duty of the person 
having charge of such prison to receive such defendant and obey 
the judgment of the city judge's or mayor's court in reference to 
him or her. And in default of payment or replevy of such judg- 
ment and costs, the defendant, unless a female, may be adjudged 
and required to pay the same by manual labor in said workhouse, 
or on the street or other public works of said city, under the con- 
trol of the street commissioner or marshal of such city; for which 
labor such defendant shall be allowed, on such judgment and costs, 
seventy-five cents per day. It shall be the duty of such street 
commissioner or marshal, or such other officer as the common 
council may direct, to work such defendant not less than six nor 
more than ten hours per day, according to the season, and each 
evening to return him to the custody of the keeper of such prison 
or workliouse. Upon the full payment, as aforesaid, of the judg- 
ment and costs, such defendant shall be fully discharged. And 
such street commissioner or marshal is hereby authorized and re- 
quired to perform all the duties herein prescribed, and to use all 
proper means thereto; and the common council are hereby vested 
with full authority to pass by-laws and ordinances for the purpose of 
compelling the enforcement of such manual labor by such defend- 
ant, by the use of sufficient force and means as they may deem 
right and proper. The keeper of such prison or workhouse shall 
receive for the keeping, custody, and boarding of said defendant 
fifty cents per day, to be paid by such city upon the presentation 
of an itemized account therefor ; and he shall receive onh'one com- 
mitment and one discharging fee. And such defendant may, at 
any time, replevy and pay such judgment and costs ; and in case he 



\ 



§ 3067] CITIES. [60 

has performed labor under such judgment, he shall be entitled to 
a credit for the same to the amount of labor performed, and the 
balance may be paid or replevied as aforesaid. 

1. This section is constitutional. The imprisonment is imposed for a failure 
to pay or replevy the judgment, and as a means of coercing such payment, and 
not as a part of the penalty for the violation of the city ordinance, 50 Ind. 28; 
64 Ind. 155. Confinement, unless the defendant performs the requisite amount 
of labor, does not pay the judgment; that«till remains in force and maybe col- 
lected on an ordinary execution for the sale of property, 64 Ind. 155. K female 
may be imprisoned for a failure to pay; but can not be compelled to perform 
labor in payment of the judgment, 64 Ind. 155 (but see §§ 6240 to 6242, chang- 
ing under certain conditions this rule). The defendant can only be confined 
thirtv days, and those thirty days must be the thirty days immediately follow- 
ing the date of the rendition of judgment, even though the defendant escape 
and is not recaptured during such thirty days, 64 Ind. 155. (See note 3.) After 
the expiration of such thirty days, even in the case of an escape, the marshal 
can not arrest and confine the defendant, in order to enforce payment of the 
judgment, 64 Ind. 155. 

2. Unless there is an adjudication to the effect that the defendant be re- 
quired to pay such judgment in labor, he can not be compelled to do 50,64 Ind. 
155; § 6229; and if compelled to work on the streets without such a judgment, 
he may maintain an action for false imprisonment against the of^cer com- 
pelling him to work, 67 Ind. 474. 

3. If the defendant, however, is required by the judgment to work out the 
fine and costs at the rate of one dollar per day (§ 6229), he can be required to 
w^ork out the full amount of such fine and costs at the rate per day provided for, 
though it may require a longer time than thirty days, unless otherwise paid, or 
replevied; and even though he escape for a time and fail to do any w-ork, he 
may be retaken and compelled to work until he has paid the full amount of such 
fine and costs at the rate provided, however long it may take him to do so, 64 
Ind. 155. 

4. Touching the use of the county workhouse, see §§ 6227 to 6242. 

5. By Avorking the defendant upon its streets, the city does not become 
liable to the city attorney for his fees, 53 Ind. 508. The city is liable to the 
county for its expense of receiving, boarding, and discharging a prisoner from 
the county jail, 7 Ind. 688; but if placed there a short time before midnight and 
discharged a short time thereafter, the city is not liable for two days imprison- 
ment, 31 Ind. 230. Fractions of days will be counted, but not as whole days, 80 
Ind 45. Costs of confinement in workhouse, see § 6232. 

6. The mayor can remit a sentence for good behavior only Avhen the com- 
mitment is to a workhouse, § 6229. 

Appeal Bond. 

We, and , acknowledge ourselves bound to the city of 

in the penal sum sum of dollars. 

Witness our hands and seals, this day of , 18 — . 

Whereas, said the city of , within thirty days last past, obtained 

judgment against , before , mayor of said city of ■ , for 

dollars and cents, with costs taxed dollars and cents, and 

said has appealed therefrom ; now, if the said shall prosecute his 

appeal to final judgment, and pay such judgment as may be rendered against him 
on such appeal, this bond shall Idc null and void, else in force. 

. ', [Seal.] 

, : Seal.] 



Taken and approved this dav of , iS- 



6.] 



IMPRISONMENT. 



[§ 3067 



Certificave to Transcript. 

I, mayor of the city oJl ■ — — — , of the State of Indiana, hereby certify 
that the foregoing is a full, true, and complete transcript of all the proceedings 
had before me in the above entitled case, as taken and copied from my docket. 
Witness my hand and the seal of said city this day of ■ — , 18 — . 



[City Seal. 



^layor of the City of - 



Mittimus for Workhouse. 



T/ie State of Indiatia^ 



JMayor' s Office^ City of 
County^ Citv of ■ ,ss: 



To the Suferintendent of the Workhouse^ County^ Greeting: 

Whereas, has been this day tried before me, mayor of the city 

of , in the county and state aforesaid, upon a charge of , in a cause 

^vherein the city of ^vas plaintilT, and the said was defendant ; and 

whereas, the said defendant was by me adjudged guilty of said charge, upon 

said trial, and for punishment I assessed that — -— be imprisoned in the 

workhouse of county, for — days, and also that forfeit to the 

city of the sum of $ and judgment was rendered thereon for such 

sum, together Avith costs taxed 2X\- , and that stand committed to the 



workhouse of ■ 



county until such forfeiture and costs should be paid or 



replevied, and the defendant not having paid or replevied the same; Therefore, 
in the name of the State of Indiana, I command you to receive the said defend- 
ant into your custody, and that you obey the judgment in reference to the 
defendant. 

Given under my hand and the seal of the citv of , this day of 

, A. D. 18—: 



[City Seal. 



Mayor. 



HI p 

o g. 








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State Commitment. 



State of Indiana^ 



Cou7ity, City of 



Mayors Office, City of ■ 
Coinitv Workliousc. Grcctin<y: 



To the Superintendent of — 

Whereas, has been this day tried before me, , mayor of the 

city of , in the county and State aforesaid, upon a charge of , in a 

— was de- 



cause wherein the State of Indiana was plaintiff', and the said — 

fendant; And, whereas, the said defendant was by me adjudged guilty of said 



§ 3067] 



CITIES. 



[62 



charge upon said trial, and for his punishment I assessed that he be imprisoned 

in the workhouse of county for days, and also that he forfeit to 

the State of Indiana the sum of $ , and judgment was rendered thereon 

for such sum, together with costs, taxed at $ , and that he stand com- 
mitted to the workhouse of county until such forfeiture and costs should 

be paid or replevied, and the defendant not having replevied the same : There- 
fore, in the name of the State of Indiana, I command you to receive the said 
defendant into your custody, and that you obey the judgment in reference to 
the defendant. 

Given under mv hand and the seal of the citv ot , this dav of 

, A. D. iS— / 



[City Seal. 



Mayor. 



Execution against Principal and Replevin Bail. 



T/ie State of Indiajia, 



County^ ss. 



Mayor'' s Office^ City of 



To the Marshal of the City of 

Whereas, on the day of — 

iudgment against , as appears on my docket, for - 

— , on said dav 



, iS — , the citv of 



— obtained 

dollars and 

And, whereas, on the 



cents, together with costs taxed at % 

day of i8 — , became replevin bail for the stay of execution 



on said judgment for 



days from the rendition thereof. 



You are therefore commanded to make the same, and accruing costs, to- 
gether with interest on said jvidgment from the date thereof, by levy and sale 

of the goods of said , if any be found in your county subject to execution; 

if not, then, without delay, lev}'- this execution upon the goods of said , 

replevin bail, and sell the same as you are directed to sell the goods of the orig- 
inal judgment defendant, and make return thereof within six months from date. 



Given under my hand and official seal this day of 



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Came to hand- 
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levied upon 



In obedience to this writ I have this 



63] clerk's duties. ^ [§ 3068 

Execution against Principal. 

Mayor'' s Office^ City of . 



State of Indiana^ County, ss: 

To the Marshal of the City of — 



Whereas, the city of obtained judgment, agains*t , as ap- 
pears on my docket, for dollars and cents, with per cent, in- 
terest from the day of , 18 — , together with costs taxed at % , 

on said day. 

You are therefore commanded to make the same by lev^y and sale of the 

goods of said , if any may be found in your county, subject to execution; 

and make due return thereof within six months Irom date. 

Given under my hand and seal this day of , 18 — . 

[City Seal.] Mayor of the City of — . 

Marshal's Sale. 

By virtue of an execution to me directed from the mayor's court I will 

expose at public sale, at the city court room door in the city of , 

county, Indiana, on the '■ day of , 18 — , between the hours of 10 

o'clock a. m. and 4 o'clock p. m., on said day, the following property to wit: 

, to be sold as the property of , to satisfy said in my hands in 

favor of the city of , said sale without relief from valuation or appraise- 
ment laws. 



Marshal of the City of 

iS 

By Deputy. 



Sec. 3068. Clerk's duties — Evidence — Fees. 21. The clerk shall 
have the custody of all books and papers belonging to such munic- 
ipal corporation. He shall make record of all proceedings of the 
common council, whose meetings it shall be his duty to attend. 
He shall countersign and register all licenses and permits, and all 
other official papers of the common council directing acts to be 
done or duties performed ; and he shall do all other things required 
by the common council and pertaining to his office. Copies of 
papers and transcripts from the records, certified by him under the 
corporate seal, shall be evidence of the matters therein contained 
in all courts of this State; and he shall be entitled to receive 
therefor, except when otherwise ordered by the common council, 
the same fees that are allowed to the clerk of the circuit court for 
similar services. 

I. See § 3097. The clerk has ho power to administer an oath. If the clerk 
omit to make a proper entry of the proceedings of the council, the council can 
order him to make a r^unc pro ttinc entry of them, 64 Ind.319; 13 Allen, 129; 22 
Mich. 104; 59 Ala. 371; 49 Mich. 69 ; 77 Ind. 542. But an entirely new council 
can not correct errors and omissions in the record of a former coimcil of whom 
none of the old members constitute a part of such new council, i Met. (Ky.) 
295. Nor can the clerk correct the record after the council has approved it, i 
Dill. Muncp. Corp. § 297. If the record has been so carelessly and imperfectly 
kept as not to show the adoption of an ordinance for improvements, and there 
is no written evidence in existence, parol evidence may be admitted to show 



§ 3o68] CITIES. [64 

that certain work has been done by authority of the city, by proving the passage 
of a resolution of the council, the appointment of a committee to make the ex- 
penditure, their report after the work done, and their report to the council, i 
Ind. 281; 12 Ind. 467; 17 Ind. 175; 36 Ind. 90, See 41 Pa. St. 68. If the record 
is destroyed^ its contents may be shown by farol^ 36 Ind. p. 99 ; 25 Ind. 512, 

2. The original proceedings of the council as kept by the clerk is also ad- 
missible in evidence, 64 Ind. 31,40; so is a sworn copy, 25 Ind. 490; R. S. 1881, 
§ 467. See also R. S. 1881, § 462. 

3. It is sufficient if the record is made under the supervision of the clerk, 11 
Vt. 402. He can not use his own seal in place of the seal of the city, 43 O. St. 
178. Clerk's deputy^ § 3043- 

4. The records of the proceedings of the common council are admissible to 
show that the street or highway in question is under the control of the city, 73 
Ind. 460. 

5. The mayor signed city v/arrants in blank, and the clerk filled them out 
in favor of himself, when the city owed him nothing, presented them to the 
city treasurer and drew the money thereon. This was held to be a breach of 
his official bond, and his sureties liable for the amount thus received by him, 45 
Ind. 10. 

6. The office of clerk is not an office under the State; and one elected jus- 
tice of the peace may hold it dviring the term for which he was elected, 52 
Ind. 599. 

Caption of Transcript. 

Be it remembered that upon the days hereinafter mentioned the fol- 
lowing proceedings had, held and transacted by the common council of the city 
of , State of Indiana, as appears from the records thereof, to wit: 

Clerk's Certificate. 

State of Indiana^ County of , .?.?.• 

I, A. B., clerk of the city of , of said State, do hereby certify that 

the above and foregoing is a full, true, and complete transcript of all the pro- 
ceedings had and held before the common council of said city in the matter of 
the opening and extension of street, as appears of record from the pro- 
ceedings of said council, in Record number , on pages , now in my 

official possession as said clerk [or, is a full, true, and complete copy of the bond 
of C D., filed by him as his official bond as treasurer of said city, in my office 

on the day of , 18—, and approved by the common council of said 

city on the day of' • iS — , v/hich bond is now in my official posses- 
sion as said clerk]. ' 

In testimony whereof I have hereunto set my hand and the seal of said city 
of , this day of , 18 — . 



[City Seal.] Clerk of the City of- -. 

No. — \ General License. r Issued, , 18 — . 

License, . . $ |- \ 

Issue Fee, $ ) City of . (Expires, ,18 — . 

To All IVhom it May Concern: 

Office of the Mayor of the City of , iS— . 

This license is granted to to in the city of , having 

paid the license of dollars therefor, conformably to the provisions of an 

ordinance entitled " An Ordinance relative to the Licensing and Regulating 
of certain Extraordinary Trades and Establi^ments, in the ," passed 

This license to be in force until the day of , 18 — , provided the 

holder hereof shall conform to the requirements of said ordinance, and of such 



65] clerk's duties. [§ 3069 

other ordinance or ordinances as are now or niaj hereafter be in this behalf 
ordained. 

In testimony whereof, I have hereunto set my hand and caused to be affixed 
the seal of the city of this day of , iS — . 

Attest: 



Market Lease. 

O^r^ cf City Cleric, , Indiana, , iS— . 

To All Whom it May Concern: 

Whereas, did on the ■ day of , 18 — , pay into the 

city treasury of the city of the sum of dollars and cents, 

evidenced by the receipt of the treasfifrer of said city, No. , and on the 

day of , 18 — , said lessee ji^ld into the city treasury the sum of 

dollars and cents, being balance in full for year ending May 31, 

18 — , by receipt No. , on file in my office; now, therefore, the said city of 

hereby leases to the said , No; , located in said city, until the 

day of , 18 — , subject, however, to the provisions of the ordinances 

governing and regulating the public markets in said city. This lease is made 
subject to cancellation by the city on thirty days' notice being given to the 
lease-holder. 

1st Installm't, $ In testimony whereof, I have hereunto set my 

hand, and caused to be affixed the seal of the 
2d Installm't, v_ citv of , this dav of ,18- 



Total, 
Attest: 



;.iayor. 



City Clerk.. 

Dog License. 

No. . Ojjice of City Clerk, , l7td,, , 18 — . 

To All Whom it May Concern: 

This license is granted ■ to keep one male dog in the city 

of , said person having paid the license of dollar therefor, conform- 
ably to the provisions of an ordinance entitled "An ordinance to regulate the 

keeping of dogs in the city of , requiring the licensing, checking, and 

registering of all dogs owned, kept or harbored within the said city, and im- 
posing fines and punishments for violations thereof," ordained and established 
June 18, 1878. 

This license will be in force vmtil the day of , iS — , and is not 

transferable. 

[City Seal.] 

Attest: Mayor. 



City Clerk. • 

Sec. 3069. Orders — Clerk's duties. 22. The clerk shall draw 
all orders upon the treasury of such city, which shall be signed by 
the mayor and countersigned by him ; but no order shall be drawn 
upon the treasury except upon an allowance made by the common 
council, or when the same is fixed by law or the ordinances of such 
city. He shall keep a register of orders and a register of receipts 
issued or received by him, so that no two receipts or orders shall 
bear the same number ; the said books, to be styled a * ' Register 
5 



§3069] 



CITIES. 



[66 



of Orders ' ' and a ' ' Register of Receipts, " shall be furnished by the 
common council at the expense of the city. He shall properly 
file and keep documents belonging to said city and appertaining to 
his office; and deliver the sJime, with all other things belonging to 
his office, to his successor, as soon as such successor is qualified. 
The clerk shall, in proper books to be furnished him, open separate 
aacounts for special and general funds, expenditures, salaries of 
officers, contracts for work, or other service done for the city, 
exhibiting therein all receipts, disbursements, and appropriations 
upon each account, and the whole amount of receipts and ex- 
penditures in one general account. 

1. In cities having a voting population of over 16,000 it is unlawful for the 
clerk to draw a %varrant upon the trea^^u^J if at the time there is no money in the 
city treasury, see §3123; nor can the icouncil, under such circumstances, make 
an appropriation. See § 3124. In cities of less than 16,000 of a voting popula- 
tion the warrant, even though there be no money with which to pay it, can 
be drawn on the treasurer; and, if not paid, it will draw interest. See §§ 3081, 
3082. 

2. Suit may be maintained upon such ivarrant by the holder, and \\z need 
not proceed by mandate. It is not necessary in order to entitle the holder to 
recover that he show that the city treasurer had funds with which to pay it, or 
that he indorsed it "not paid for want of funds" (§ 3081). Such an order con- 
stitutes a frinia facie cause of action. " They are not negotiable in such a sense 
as to be protected in the hands of bona fide holders against defenses."' The 
property of a city can not, however, be taken upon execution to pay them, 85 
Ind. 184. If the holder owes the city anything, that may be set off against the 
warrant; but if such debt consists of taxes, it must be shown that he had property 
within the city liable to taxation for city purposes. A plea of want of considera- 
tion is good, 86 Ind. 235; 9 Ind. 224; 6 Kan. 510; 19 Ind. 540; 100 111. 537. The 
holder or transferee may sue in his own name, 56 Me. 315; 19 I:i. 199, 248; 65 
Mo. 105. 

3. Touching cojistitutional limit of indebtedness, and issuing warrants there- 
after, see § 220, 7iote. 

Warrant. 

$100.00. , 18 — . 

To the Treasurer of tiie City of .- 

Pay to A. B., or bearer, one hundred dollars on account of salary as 
city attorney. 



Attest 



Mayor of the City of- 



Clerk. 







Register of Orders. 




No. 


Date. 


To whom issued. 


For whnt issued. 


































i 







67^ 



CLERK S DUTIES. 
Register of Receipts. 



[§3069 



Xo. 



From -vvhom received. 



On whr.t nccount received. 



Clerk's Monthiy Report. 

Common Council [and Board of Alder mcn\: 



To the — 

Gentlemen: I herewith submit an itemized statement, showing the 

amount of orders drawn on the city treasury during the month of , 18 — . 

viz.: 



Accounts. 


Amount. 
Doh. CtR. 


Totals. 
Dols. Cts. 


Board of Health, . 











City Assessor's Department, .... 
City Civil Engineer's Department . 

Citv Dispensat V, 

City Hall, . " 




















City Treasurer's Percentage, .... 

Cisterns, 

Elections, 

Fire Department, 

Fountains and Driven Wells, .... 

Gas, 

Incidentals, 

Interest on Bonds, 

Tudo^ments and Costs, ... ... 












Markets, ... 

Market Master's Fees, 

Parks, 

Police, 

Printing, 

Salary, 

Sewers, 










Station House, 










Street Improvements, ..... 










Street Repairs, 

Taxes Refunded, 

Water Rent, 































For School Fund, 

For Sewer Fui^d, 

For Sinking Fund, ......... 










...... 


SPECIAL funds: 
From Special Sewer Fund, 







1 




Total, ...... 






1 









City Clerk. 



§ 3070] CITIES. [68 

Sec. 3079. Duplicate tax-list. 23. The clerk shall, annually, be- ' 
tween the first Monday of June and the fifteenth of November, 
make out a duplicate list of taxes assessed in such incorporated 
city in the same manner that duplicate lists of taxes are made out 
by county auditors, and shall cause a copy of such duplicate list 
to be delivered to the city treasurer on or before the fifteenth day 
of November of each year; and in all matters pertaining to the 
making up of such duplicate tax-lists, and the assessment of taxes 
thereon, and in the manner of entering property returned delinquent 
for taxes, he shall be governed by the laws defining the duties of 
county auditors, so far as the same may be applicable, and not 
otherwise herein provided ; and he shall deliver the same, with a 
warrant, under the corporate seal of said city, attached thereto, 
to the treasurer of said city, directing him that of the goods and 
chattels of all and every person named in said duplicate, and of all 
persons whose names may be added thereto by him, he shall cause 
to be made, by distress and sale if necessary, the amount of tax 
charged against each of said persons named, in said duplicate, and 
make report of his doings in the premises by the third Monday in 
March next following, and make full return, report, and final settle- 
ment thereof by the first Monday of August next following. 

1. See § 3087. 

2. By the express provisions of the tax law of 1891, cities are governed by 
its provisions, § 3160 (which is a part of the tax law of that year). Wherever 
a provision in that law differs from this and the following section concerning 
city taxation and sach provision, or any part of it, can be applied to the city, it 
must be followed. The clerk must make a copy of the tax-list and give such 
copy to the treasurer, retaining one for himself. The law contemplates the 
clerk's making or't two original tax-lists, and his retention of one of them for 
himself, § 6422. 

3. The -tax duplicate now need not be turned over before the last day in 
December, § 6421. Clerk making tax duplicates and assessing taxes. § 6417 to 
6421; correcting errors, § 6421 ; 07nitted property, § 6416; crediting treasurer, 
§ 6428; delinquent list, § 6457; advertisement of tax sale, § 6458; acts as clerk 
of sale, § 6463 ; issues certificate of sale, § 6464 ; redemption from tax sale, 
§6 6466 to 6478 ; co7iveyance of land sold for taxes, § 6479 to 6490; fees on tax 
sales, etc., § 6482. 

4. The tax duplicate and the r.'arrant attached thereto constitute the city 
treasurer s authority for the enforcing of the payment of taxes by seizure and 
sale of property, and, taken together, confer on him the same power to seize 
and sell personal property as is conferred by an execution issued to a sheriff; 
but the duplicate, unaccompanied by the warrant, is not sufficient, 30 Ind. 133. 
See § 6424, notes. 

5. A complaint to enjoin the collection of taxes must show, not mere irreg- 
ularities in making the assessment, but that such assessment is illegal and void. 
Averring that the council fraudulently and corruptly placed all the real estate 
in the city on the duplicate, without stating the particulars cionstituting the 
fraud, is not sufficient ; so it is not sufficient to allege that certain lots assessed 
were not taxable, unless it is shown that they do not lie within the city limits, 
61 Ind. 29. Illegal taxes may be enjoined. "22 Ind. 262. 



69] assessor's duties. [§ 3071 



Warrant for Collection of Taxes. 



State of Indiana, Cozen ty of , .t.v; 

TJie City of — to A. Z>., Greeting': 

You, as treasurer of said city, are hereby commanded, out of the goods 
and chattels of each and every person named in the within and annexed tax 
duplicate, and of each and every person whose name may hereafter be lawfully 
added thereto either by the clerk of said city or by yourself, to cause to be made, 
by distress and sale, if necessary, the amount of 'tax charged against each and 
every of said persons named in the annexed duplicate, and of each and every 
person whose name is hereafter lawfully entered thereon, and make report of 
your doings in the premises by the third Monday in April next; and make a full 
return and report, and final settlement thereof, by the first Monday in Novem- 
ber, iS — . And this shall be a full authority to you in said premises. 

V/itness mv hand and the seal of said city this day of , iS — . 

[Citv'Seal.] ' C. D., 

Clerk of the City of . 

Sec. 3071. Assessor's duties. 24. Each city assessor shall, on or 
before the first Monday in June of each year, unless otherwise di- 
rected by the common council, make and deliver to the city clerk 
of his city, in tabular form and alphabetical order, a list or lists of 
the names of all persons, companies or corporations in whose 
names any personal property, moneys, credits, or other taxables 
shall have been by him listed in his city ; on which list or lists he 
shall enter separately, in appropriate columns, opposite each name, 
the several species of personal property and taxables required by 
law to be taxed for state and county purposes, as attested by the 
person required to list the same, or as determined by the assessor; 
and he shall also make a separate list of such other property or 
thing as the common council in their ordinances direct to be spe- 
cially taxed ; the columns shall be accurately added up. And in 
every case where any person whose duty it is made by law to list 
any personal property or other taxables for taxation for the state 
and county purposes shall refuse to make out and return the lists 
of personal property and taxables, the assessor shall enter, in an 
appropriate column, the words ** refused to list"; and in every 
case where the person required to list personal property for taxa- 
tion shall refuse to take and subscribe the oath or affirmation re- 
quired of him by this act in regard to the truth of his statement, 
the assessor shall enter, in an appropriate column, the words "re- 
fused to swear"; and in every case where any person required to 
list property for taxation shall have been absent, or unable from 
sickness to list the same, the assessor shall enter opposite his name 
the word "absent" or "sick." Said assessment shall be com- 
pleted at the time above indicated, and return made thereof to the 
clerk of the city, unless, by an order of the common council, further 
time be given him. He may, with the concurrence of the common 
council, appoint one or more assistants, who shall be sworn, in like 
manner as other officers, to well and faithfully perform the duties 
thereof Such assessor and assistants shall have the same powers, 



§ 3072] CITIES. [70 

and be subject to the same provisions of the same lav/s as the as- 
sessor of personal property for state and county purposes. But if, 
at any time, any town or city adopting this act shall have no asses- 
sor except the one elected on the first Tuesday in May, as afore- 
said, then it shall be lawful for the common council to appoint an 
assessor, who shall qualify as if elected, and shall assess for the 
year commencing on the first Monday in January next preceding 
such appointment; and the assessor elected at a regular election 
as aforesaid shall assess, as herein required, for the year commenc- 
ing on the first day of January following such election. Such as- 
sessor shall, at the time he is required by this act to make return 
of taxable property to the city clerk, also deliver to him all the 
statements of property which he shall have received from persons 
required to list the same, arranged in alphabetical order, corre- 
sponding with his list or lists, and the clerk shall carefully preserve 
the same in his office. 

1. The office of city assessor has been abolished, § 3160. The assessment of 
the township assessor, in which the city lies, becomes the assessment for the 
city, see 61 Ind. 29; 62 Ind.;42i. This section is now obsolete. 

2. The general state tax law, §§ 6330 to 6396, must be followed so far as ap- 
plicable, §§ 3160, 3263. Correctio7i of errors^ § 6390; omitted property^ § 6393; 
bond^ § 6374; refusal oi "^Qx^on to take oath^ §6341; sicktiess of tax-payer, § 6342. 

3. The office of assessor in cities containing a population over 70,000 has 
also been abolished. Acts 1885, p. 13. The general rule is that the assessment 
must be returned by the first Monday in June, but it is discretionary with the 
council to extend the time ; and such discretion may be exercised either before 
or after that time, so far as the validity of the tax is'involved, 23 Ind. 423. 

Sec. 3072. Assessor's duties. 25. Each city assessor shall annu- 
ally (except when the real estate is appraised), at the time of tak- 
ing lists of personal property, also take a list of all real estate situ- 
ate in his city that shall have become subject to taxation since the 
last previous listing of property therein, with the value thereof, 
estimated agreeably to the laws regulating the duties of appraisers 
of real estate ; and all new improvements, buildings, or other 
structures of any kind, the value of which shall not have been pre- 
viously added to or included in the valuation of the lands on Vv^hich 
such improvements have been made or structures erected; and 
shall make return thereof to the city clerk at the same time that^ 
he is required by this act to make return of personal property; in 
which return he shall set forth the parcel of real property on which 
each of such improvements shall have been made or structures 
erected, and the true value added to such parcel of real estate by 
the making of such improvement or the erection of such structure. 
And the additional sum which it is believed the land on which the 
improvement shall have been made or structure erected will sell 
for at private sale, in consequence thereof, shall be considered the 
value of such improvement or structure. And in case of destruc- 
tion by fire, flood, or otherwise, of any improvement, building, or 
structure of any kind which shall have been made or erected pre- 



7i] CIVIL engineer's duties. [i< 3073 

vious to the last valuation of the land on which the same shall 
have been added to any former valuation of such land, the assessor 
shall determine, as nearly as practicable, how much less such land 
would sell for at private sale in consequence of such destruction, 
and miake return thereof to the city clerk, as in this section before 
provided in relation to improvements made or structures erected. 
This section is novr obsolete. 

Sec. 3073. Civil engineer's duties. 27. The civil engineer shall 
prepare plans, specifications, and estimates, when thereunto directed 
by the common council, of proposed public improvements, and 
shall superintend the opening of streets and the preservation of the 
true lines thereof, and perform all other duties appertaining to his 
office when directed by the common council. And such engineer 
shall have exclusive jurisdiction to survey, determine, establish, 
and perpetuate the lines and corners of all lots, blocks, parcels of 
land, and subdivisions thereof, within the lim-its of such city. He 
shall make a record of all such surveys, as the county surveyor is 
now required to do ; and such record, or certified copies thereof, 
shall have the same force and effect as the record of surveys made 
by the county surveyor has ; and from all such surveys an appeal 
may be taken, as provided for appeals from surveys made by the 
county surveyor: Provided, That when the city authorities have 
once established the grade of any street or alley in the city, such 
grade shall net be changed until the damages occasioned by such 
change shall have been assessed and tendered to the parties injured 
or affected by such change, and such damages shall be collected 
by the city from the party or parties asking such change of grade 
in the m^anner provided for the collection of street improvements. 

I. Under this section, Avlien the city has once established the ^rade of a 
street or alley, it can not be changed until damages have been assessed and ten- 
dered, 50 Ind. 151; 100 Ind. 242, 545; 107 Ind. 404; 113 Ind. 425, But the pro- 
viso does not apply where a town has established the grade of a street and then 
such town is changed into a city. In such a case the city may change the grade 
of the street as established by the town without paying damages, 88 Ind. 428. 
The council can make a change of grade at any time, and pay the damages oc- 
casioned by the change out of the general revenues of the city, 34 Ind. 140. 
This section applies to property outside the city, 33 Ind. 435. But a city is not 
liable, in making the first grade of a street, to co7iseqiie7itiaL damages, 36 Ind. 90, 
S. C. 10 Am. R. 12; 36 Ind. 522; 88 Ind. 428; 119 Ind. i; 108 Ind. 7; 123 Ind. 
250; nor in improving or repairing the street, 23 Ind. 381; 19 Ind. 326; 12 Ind. 
516; 79 Ind. 491, S. C. 41 Am. R. 618; nor for consequential damages caused by 
a change of grade previous to the enactment (1867) of this proviso, 17 Ind. 267; 
nor for them since its enactment. Such damages do not fall within the provis- 
ion of the constitution providing that before private property can be seized or 
taken the damages occasioned thereby must be first paid or tendered, 100 Ind. 
242 (citing 17 Ind. 267; 14 Ind 399; 36 Ind. 90, S. C. 10 Am. R. 12; 19 Ind. 326; 
75 Ind. 241, S. C. 39 Am. R. 135, Cooley on Const. (5 ed.) 252, 673, noie i); 119 
Ind. I. If there is a change causing both consequential and other damages, the 
person damaged may maintain an action against the city to recover the amount 
of his damages, 113 Ind. 429; 100 Ind. 242; 51 Ind. 151; 123 Ind. 250; without 
resorting to an injunction to prevent them, or demanding their assessment, 107 
Ind. 404. But lor the assessment the lot owner must proceed according to the 
statute, 36 Ind. 522. 



§ 3073] CITIES. \J2 

2. To give a cause of action there must be a legal injury and resulting dam- 
ages. An illegal change of grade causes an injurj, but if it cause no damages 
no action will lie. "The injury must be special, and not merely such as the 
public may suffer, for a private person can not recover damages for the unlaw- 
ful obstruction or destruction of a highway unless he has suffered special dam- 
ages." Lowering an alley so as to cut off access to an abutting lot is a special 
damage, where the grade has been previously established; and it is not neces- 
sary that the lot owner should have made improvements with reference to the 
first grade to entitle him to recover damages resulting from the change; but the 
fact that improvements have been so made may augment the damages, 113 Ind. 

425- 

3. A lot ov/ner, whose lot is damaged by a change of grade, can maintain 
onl}^ one action for damages; he can not split his cause of action, but must re- 
cover all damages past and present, in one action, 113 Ind. 435; 113 Ind. 543; 
103 Ind. 314. 

4. The khtd of grade referred to in the proviso " is a grade established in 
pursuance of some ordinance or order of the common council involving some 
general plan of improvement or grading of a street or specified portion thereof. 
And such grade, when established, must be approved and adopted in some way 
by the common council, and should be made a matter of record. The record 
of the survey establishing the grade should appear in the record which the civil 
engineer is required to keep, and the proceedings of the council should in some 
way, either by ordinance or resolution, show that the survey establishing the 
grade was authorized or approved, so as to make it authoritative. Until pro- 
ceedings are had by the common council directing that the grade of a certain 
street or streets, or specified portions thereof, shall be established, or that a grade 
already established is approved and adopted in some authoritative way by the 
common council, it can not be deemed that the city authorities have once estab- 
lished the grade of a street, and improvements are made by lot owners subject 
to the right of the city to establish or change the grade without the assessment 
or payment of damages," 100 Ind. 545. And in a complaint for damages, on the 
theory that damages have been occasioned to the plaintiff by a change in the 
established grade of a street, it must be averred that a grade had been legally 
established, and that a change was made in the grade without first assessing the 
damages occasioned thereby, 133 Ind. 350. 

5. Before an abutting lot owner can recover damages alleged to have been 
caused by a change of grade, he must allege and show the existence of a duly 
established grade by the city authorities at the time the improvements were 
made (if improvements are relied upon to augment the damages); that the im- 
provements were made with reference to a grade so established, and that the 
city had changed the grade so established (or in case of an injunction, that the 
city is proceeding to change the grade so established) "without the assessment 
and tender of the damages so occasioned," 100 Ind. 545. 

6. The records and files of the city pertaining to the establishment of a 
grade, should, in such an action, be produced in proof; and unless these are 
shown to have been lost or destroyed, no other proof is admissible, 78 Ind. i ; 6 
Neb. 27 ; 100 Ind. p. 549. Certified (or sworn) copies are also admissible. See 
§ 3068, 7tote. The grade can not be proved, nor that one was established, by the 
declarations of the city's oi^cers, 6 Neb. 27. So the ordinance of a city " requir- 
ing persons to construct sidewalks in conformity to the existing grade of the 
streets, and also requiring the city engineer, on application, to fix for such per- 
sons the grade on which their sidewalks should be laid, was a proper regu- 
lation to secure uniformity and safety in the sidewalks ; but it can not be said 
that because this Avas required, and sidewalks were built and improvements 
made with reference to grades so fixed, the city was thereafter estopped from 
establishing a different grade for the street without the assessment and tender 
of damages ; nor does the fact that the committee on streets, with the city 
engineer, directed the appellant where to place her sidewalk, estop the city," 
100 Ind. 545. 

7. Where the council directs that a plan of improvement be prepared, or a 
grade established, by the engineer, for a certain street, which is done and re- 
ported, and accepted, the fiction of the council will not be overthrown for want 



73] CIVIL engineer's duties. [§ 3073 

of form; thus, "the survey and plan for the improvement of S. street by J. is 
accepted," is a sutiicient accej>taiice, 78 Ind. i. The action of the council in this 
matter need not \>q published, see 108 Ind. 208. The proceedings establishing a 
grade is not void for uncertainty, if the grades so established can be ascertained 
without difficulty, 49 Ind. 322 ; 109 Ind. p. 234. 

8. If the engineer reftcsc to prepare plans or to make estimates, after ordered 
to do so, under 3163, he may be compelled by mandate to do so, 96 Ind. p. 216. 
His duty is ministerial, 90 Ind. 567. It will be presumed that he prepared plans 
:ind specifications for street improvements, conformable to an ordinance in 
force, and had them on file in his office at the time the work is ordered where 
the order for the work refers to them as being there on file, 109 Ind. 206. 227. 

9. Removal of engineer, see § 3043, note, Estimatitig and apfortioning 
cost of grading street, § 3163, note. 

10. Establishment of a grade is a legislative act of the council, and can not 
be delegated to the engineer. 21 Bull. 216; 4 Ohio C.C. 327. 

Order for Establishment of Grade. 

It is hereby ordered that the city civil engineer prepare a plan for the 
grading of so much of S. street of this city as lies between J. and L. streets. 



Report of Pian. 

To the Common Council of the City of ; 

I herewith submit a plan for the grading of so much of S. street as lies 
between J. and L. streets of said city, in accordance with your order of the 
dav of , 18 — , to wit: [Describe the grade.] 

A. B., 

City Civil Engineer. 

Acceptance of Pian. 



Whereas, on the day of , 18 — , this council ordered the 

city civil engineer to prepare a plan for the grading of so much of S. street of 
this city as lies between J. and L. streets ; and 

Whereas, said engineer, on the day of , i8~, reported to his 

council such a plan ; therefore 

Such plan is hereby accepted by this council, and the grade of such street is 
hereby established according to the specifications of said plan; and the same is 
ordered to be recorded in the records of the office of said city civil engineer, 
and inserted in the records of this council. 



Ordinance Establishing Grade. 

AN ORDINANCE, NO. , TO ESTABLISH THE GRADE OF STREET, FROM 

TO . 

Be it Ordained by the Cou7icil of the City of , as follovjs : 

Sec. I. That the grade of street from to be and the 

same is hereby established as follows, viz: Commencing at , at an ele- 
vation of feet above the established datum, thence along the top of the 

curb, [or, center of road-bed] of said street, — scending at the rate of 

feet in each one hundred feet for a distance of feet to an eleva- 
tion of feet; thence — scending at the rate of feet in one hundred 

feet for a distance of feet to an elevation of feet; etc., etc., and the 

curb shall be on the same level with the curb. 

Sec. 2. This ordinance shall take effect, etc., etc. 

[If one curb is to have a different elevation from the other, a separate grade 
should be fixed for each.l 



§ 30/3^] CITIES. [74 

Form of Estimate. 

To the Common Council of iJic City cf : 



The following is an approximate estimate of the cost of improving 
street. 



Broken stone Cubic jards © 

Catch basins, complete Pieces @ 

Concrete ... Cubic yards @ 

Coping Square feet Q 

Crossings Lineal feet © 

Curbs, pattern " O 

" @ 

Drainpipe inch " @ 

'^ .... " ^ " © 

"...." " @ 

"...." " Q. 

Grading Cubic yards @ 

Gravel, screened " © 

Gutters, flagging Lineal i&et © 

" flag and limestone ...... " @ 

Inlets Pieces © 

Lumber Feet, B. M. © 

Man-holes Pieces © 

Masonry, dry, ret, wall Cubic yards @ 

" " drain wall " © 

" rubble, lincoursed " @ 

" " coursed ....... "" © 

'• squared stone " @ 

brick " @ 

Paving v.-ith bowlders Square j^'rds© 

" " lim,estone " © 

" " @ 



Rebowldering (with new bowlders) . . " @ 

Rolling (... .times) " @ 

Wellhole plates Pieces © 

Advertising and superintending @ 



Expense to property owners Feet © 

Expense to city " © 



Total cost. 



City Civil Engineer. 
[The above may be used as a convenient form for making an estimate when 
it is contemplated to improve a street. It is not necessary that such an estimate 
should be made, but it is occasionally done for information before imposing 
upon abutting lot owners the burden of making the improvement.] 

[i R. S., 1S52, p. 469. Approved June 17, 1852, and in force May 6, 1853.] 

Sec. 3073^-. Survey, prima facie evidence — Appeal — Proceedings. 
8. The survey of such surveyor shall be prima facie evidence in 
favor of the corners so established and the lines to run; but an 
appeal may be taken to the circuit court, within three years, and 
such court may reverse such survey. Upon such appeal being 
prayed for by any person, such surveyor shall, forthwith, transmit 
the papers in his hands touching the same, and copies of the field- 
notes in the case complained of, without requiring an appeal-bond ; 
and such court, in the trial of such appeal, may receive evidence 



75] STREET commissioner's DUTIES. [§ 3074 

of Other surveys of the same premises, made by the same or other 
persons, either before or since the one complained of; and if such 
court shall decide against such surveyor, it shall enter an order for 
a resurvey, and such new survey may be made by any other com- 
petent person whom the court may designate, from whose decision 
an appeal may be had in like manner. [R. S. 1881, § 5955.] 

1. It was held in Ashe v. Lanham, 5 Ind.434, that the survey x-s, prima facie 
evidence against the party at whose instance and in whose presence it was 
made; but in Mull v. Owen, 67 Ind. 95, (45 Ind. p. 477) it was held, that if such 
survey be conducted according to § 5950, and said party be present and assist, 
and express himself satisfied with the survey, he is estopped to dispute its cor- 
rectness, as is also his vendee, who was present and had knowledge of the sur- 
vey; while in Herbst v. Smith, 71 Ind. 44, it was ruled that such a survey was 
frima facie evidence during the time allowed for appeal, and conclusive aftec- 
v.-ard, and that any subsequent survey would not affect this result, 84 Ind. 244; 
100 Ind. 463, see 107 Ind. 593, (see survey unauthorized by statute, 109 Ind, 366.) 

2. On appeal the appellant has the 07ius^ 50 Ind. 19. And if the surveyor 
do not send up the papers and copies required by this section, the appe-al will 
be dismissed, imless it be perfected, 59 Ind. 427. 

3. The court may ordei- a resurvey and appoint a person to make it; but it 
can not order him how to do it, 89 Ind. 274. This section does not apply to a 
private surveyor ; and no one is bound thereby unless present and acquiescing, 
or consenting that the survey could be made, and agreeing to stand by the result, 
90 Ind. 93, 165, see 107 Ind. p. 593. 

4. Fees. — The city surveyor is entitled to no fees unless he is establishing 
lines and corners at the request of private persons, and without an order of the 
council. His only compensation is his salary. 

5. On appeal twenty years exchcsive possession up to a line different from 
that established by the survey may be shown, 93 Ind. 201. The true lines may 
be shown by parol evidence, 107 Ind. 591; 93 Ind. 201. 

6. The survey does not determine the right of title; and a new trial as of 
right can not be demanded, 118 Ind. 520. 

7. The appeal is tried on the transcript sent up to the circuit court by the 
surveyor, and pleadings are unauthorized, 89 Ind. 274. 



Prayer for an Appeal. 

To the Civil Engineer of the City of : 

I hereby request an appeal from the survey you made on the 

day of , 18 — , of the following described land, to wit: [describe it,] and 

ask that you transmit to the circuit court the papers in your hands 

touching such survev, with certified copies of the field notes thereof. 

A. B. 



[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3074. Street commissioner's duties. 28. It shall be the duty 
of the street commissioner, under the direction of the comm.on 
council, to superintend the streets, alleys, market-places, landings ; 
the construction, repairing, cleaning, and lighting the same ; the 
building of sewers and drains; the purchase of the necessary im- 
plements of labor, and the employment of laborers ; and shall per- 
form all the other duties incident to his offic^: PjvvidcJ, He shall 
have no power to contract for any debt or liability against the city, 



§ 3075] CITIES. \j6 

unless specially authorized so to do by an order, resolution, or or- 
dinance of the common council, made in accordance with the powers 
vested in such council by this act. 

1. While a street commissioner remains in office, the city council can not 
devolve his duties upon another,, 59 Ind. 364. But he may be removed by a ma- 
jority vote and his duties devolved upon the marshal, 32 Ind. 79; but when 
charges are preferred against him, a two-thirds vote is necessary, 32 Ind. 74. 

2. Notice to a street commissioner of a defect in a street is notice to the 
city, 73 Ind. 367. The city is liable for his torts committed in the performance 
of work authorized by its corporate powers; as the building of a sewer entrusted 
to his supervision, 102 Ind. 372; 112 Ind. 542. 



Street Commissioner's Monthly Report. 

To the Commofi Council of the City of .• 

Gentlemen: I herewith report expenditures in the " Street Repair 

Department," for the month of , together with total expenditure to 

the ist, 18—. 

Pay-rolls, $ 

Lumber, 

Gravel, 

Bowlders, 

Sand, 

Hardware, 

Blacksmithing, ■ ^ 

Broken stone, 

Freight, ^ 

Fountain repairs, 

Street sweeping, — — — — 



Total expenditure for , iS — , $- 

Total expenditure per last report, - 

Total expenditure to the ist, 18 — , . . .' - 

Respectfully submitted. 



Street Commissioner. 



Sec. 3075. Marshal's duties and powers. 29, The m.arshal shall 
be the chief ministerial officer of the corporation. He shall be a 
conservator of the peace within his city, and shall arrest, without 
process, all persons who, within his view, shall commit any crime 
or misdemeanor or violate any ordinance of such city, take them 
before the mayor or other officer having jurisdiction of the offense 
with which such person is charged, and detain them in custody 
until the cause of such arrest has been investigated ; suppress all 
breaches of the peace within his knowledge, hereby giving to him 
authority to call to his aid the power of the city; pursue and com- 
mit to jail all felons and persons guilty of misdemeanors or viola- 
tions of the ordinances of such city. He shall execute and return 
all process directed to him by the mayor or city judge, or by order 
of the common council, either in person or by deputy; attend upon 
and preserve order in the mayor's court and in justice's court within 
his city, in all cases wherein he has served the writ or process to 



'j'/'\ marshal's duties. ■ [§ 3076 

bring such party into court ; and, in addition to the powers herein 
vested in such marshal, he may, without any writ or order of 
attachment, confine any person or persons guilty of any offense 
against the penal laws of the State of Indiana or ordinances of such 
city in the city watch-house or prison, or county jail (if such arrest 
be made when the court having jurisdiction of the offense with which 
such person is charged shall not be open or in session), until there 
shall be an opportunity to bring such defendant before the mayor, 
if for violation of the ordinances of such cit)/, or before a justice of 
the peace or mayor, if for violation of the penal laws of the State, 
which it is his duty to do at the earliest practicable time. But no 
person shall be detained in custody more than eighteen hours, un- 
less by order of the mayor or a justice of the peace, upon affidavit 
and writ charging such person with some offense. 

[iSSi S., p. 109. Approved and in force April 9, 1881.] ' 

Sec. 3076. Has constables' powers, i. City marshals shall have, 
in addition to the powers they now possess, the jurisdiction and 
powers of constables in their respective counties. 

1. Service of process in civil suits against the city may be made upon the 
city marshal, § 316, city prison, § 3106, olause 44. 

2. An arrest is the taking of one person into custody by another to answer 
for a public offense, R. S. 1S81, § 1640. A person not deprived of his liberty is 
not arrested, 50 Mich. 549. Words alone can not constitute an arrest. Any 
thing Avhich brings a person under the actual control and will of another is an 
arrest, whether it is a voluntary submission to the words of arrest, a physical 
seizure of his person, or a locking in a room in which the arrested person is 
found, 22 Mich. 267; 21 Ala. 240; 8 Grenl. (Me.) 127; i Wend. 210. Merely 
laying hands on the offender, accompanied by words of arrest is an arrest, 
though he escape, 3 Allen, 495, R. S. 1881, § 1687. 

3. The officer must notify the offender of his arrest, R. S. 1881, § 168S, 42 
Me. 384; 10 Mich. 169; but if such offender knows the otTicer to be such, or by 
seeing his badge of office or uniform, 32 N. Y. 509; R. S. 1881, § 1688; or by his 
seizure while actually committing an offense, 19 O. S. 248, farther notice is not 
necessary. So the same is true if the accused is immediately pursued from the 
place of crim&, 27 Cal. 572. Actual notice of arrest even dispenses with read- 
ing the vjarrant-vy^h-en the arrest is made by warrant, 55 Mich. 506; 6 Gray 3^0 ; 
5 Harr. (Del.) 487. 

4. In felonies the officer need notsJwzu his ivarrant, R. S. 1881, § 1688; though 
it were better to do so, but it is otherwise in misdemeanors and breaches of 
ordinances, if it can be done without the accused escaping. One sought to be 
arrested has a right to know whether the arrest is a legal one or not, 10 ISIich. 
169 ; 42 Me. 384 ; 6 Gray, 350. 

5. Violence can not be used unless actually necessary, R. S. 18S1 § 1689 ; 2 
Tex. App. 20 ; 4 Tex. App. 175 ; 41 N. Y. 498 ; not even to the extent of taking 
the offender by the collar, if there is no resistance or attempt to escape, 3 Harr. 
(Del.) 568 ; nor beat him with a club, nor use violence of any kind, because ®f 
opprobrious words or abusive language, 80 Ga. 544. Nor use handcKff's, iinless 
there is danger of an escape, 14 Minn. 385; but in this respect the officer is 
judge of the necessity for their use, and is not liable unless he clearly abuses his 
discretion, 2 Ired. L. (N. C.) 50 ; 71 Mich. 377. 

6. He may arrest any one committing an offense in the presence of the 
mayor or other magistrate upon the latter's verbal order, where the offender is 
still in the presence of the mayor, although the offense was committed at a 
time when he was not present, 19 111. 242 ; 11 Grey 194 ; 52 N. H. 4S1. 



§ 30/6] CITIES. [78 



7. A ivarrant in d 21 e form, issued by competent authority to liim, is a com- 
plete protection to him, 2 Gray, 410 ; 33 N.J. L. 134. A warrant to be legal 
must be (i) issued by competent legal authority, (2) commanding the arrest of 
a certain person or more, (3) upon sufficient grounds stated therein, 10 Mich. 
169. The person to be arrested must be named ; and if it be for A. B. " and 
five other persons whose names are unknown," unaccompanied by a description 
of the unknown persons, the arrest of such five will be illegal, 114 Ind. 542. A 
blank ivarrant, signed by the magistrate, but filled up after the arrest, is void, 
69 Ind. Ill ; 8 Tex. App. 545. The officer must himselftake notice of the valid- 
ity or invalidity of the warrant, and that it was issued upon legal cause duly 
shown. He is not, however, bound to know that the charge is technically 
accurate in form, i Conn. 40; 37 Me. 130; 10 Mich. 169; 13 r.Iass. 285. An 
informal warrant is a sufficient protection, 63 Ind. 112 ; 2 B. 294 ; 6 B. 163. The 
first name must be given, 7 Kan. 426 ; nor with a warrant for A can he arrest 
B, 8 Tex. App. 545 ; 6 Cow. 455 ; nor with one for ''persons who are suspected," 
can he arrest, 114 Ind. 542; i Conn. 40; and even though he in all these 
instances arrest the persons actually sought, he will be liable to them civilly for 
an illegal arrest. If the name of the person sought to be arrested is unknown, 
he must be particularly described so that he can be identified, 10 Allen, 403 ; 7 
Cow. 332. 

8. He may call upon any one to aid him in making an arrest b\' warrant, 
R. S. 1881, § 1691; 63 Ind. 1 12; 43 Ind. 175; and if such person (unless a female) 
refuse, he is liable to prosecution, 10 Johns 84; 6 B. 277; 3 Ired. (X.C.) L. 20; 
63 Ala. 93. If the officer's warrant is void, yet if the citizen does not know that 
fact, he will not be a trespasser bv aiding the officer, 71 Mich. 377; 43 Ind. 175 ; 
34 Vt. 69; 83 Ala. 60. " 

9. He may use all necessary ybrce to accomplish the arrest; and if necessary, 
when resisted, he may even take the life of the person for whom he has the 
Avarrant issued for a violation of a city ordinance or oftense against the State, 
96 Mo. 165; 2 Abb. (U.S.) 265; see 107 Ind. 144; R. S.1881, § 1689. In such an 
instance, if the person sought to be arrested kill the officer, it is murder, 61 Pa. 
St. 352; 36 Tex. 542; 107 Ind. 144; see 13 Crim. Law Mag. p. 173; and if he 
strike him, it is an assault and battery, 11 Ind. 471. 

10. In order to make an arrest under a warrant or for a felonv (not a mis- 
demeanor, nor for a violation of a city ordinance) without a Avarrant on reason- 
able suspicion, or even to quell a riot or affrav actually going on, he mav break 
ope.ji any door of a house, and he is not bound to do so at his peril on the condition 
that the person sought must be in the house, R. S. iSSi, § 1692; i Root (Conn.), 
83; I N. H. 346; 14 B. IMon.395. Hg may break open a door to liberate him- 
self, R. S. 1881, § 1693; or upon the order of a magistrate present and com- 
manding the arrest, although no warrant has been issued, II Gray, 194. He must, 
however, first demand admittajice^ stating the object thereof, 10 Cush. 501. He 
may even search the hovise if he reasonably believe the person sought is therein, 
and if he also reasonably believe he committed a felony, or has a warrant for 
him, and in order to do so may break open the door after demand and notice, i 
Allen, 587; 120 Mass. 190. 

11. If it is impossible to otherwise arrest a felon -vho flees, he may kill him 
it is said to prevent his escape, 61 Pa. St. 352; but there are many cases (and a 
decided majority) which decline to follow so harsh a rule, 65 N.C. 327 (may in 
crimes of great personal violence); i Hill (S. C.) 327; 44 Tex. 12S; 44 Tex. '128, 
645; 2 Dev. (N. C.) 58; 5 Park (N. Y.) 234; 44 Ala. 41 ; see 13 Crim. Law- 
Mag, p. 173. 

• 12. He may arrest ivithout zvarratit one whom he has good reason to 
believe guilty of a felony; and so long as he acts in good faith, he will be pro- 
tected, even though no felony has been committed, 31 Ind. 422; 99 Pa. St. 63; 
7 Mo. 236; 107 Ind. 144; 49 Ind. 56. He is not bound to wait and see if the 
suspected person can escape before he can procure a Avarrant, 5 Cush. 2S1 ; 3 
Wend. 350. (By a felony is meant a crime punishable by confinement in the 
penitentiary, 8 B.4S9; 7 B. 186; as petit larceny, 63 Ind. 376.) But before he 
can arrest a felon, Avithout a Avarrant, there must be "a reasonable ground of 
suspicion, supported by circumstances, sufficient to Avarrant a cautious man in 
believing that the party is guilty of the offense," 99 Pa. St. 63: 49 Ind. 56; 31 



79] marshal's duties. [§ 3076 

Ind. 422, In another case it is said that " there must be a strong conviction 
from the circumstances, that the party arrested was the felon," 49 Ind. 396; 
and it is added: "'The unlawful arrest of a free citizen finds no favor Avith 
courts, juries, or with the public at large, and if officers clothed with brief 
authority shall indulge in it as a luxury, they must expect to pay for it," 49 111. 
p. 399. The governor's proclamation will justify an officer in arresting a person 
whom he has good reason to believe is the person described in it, 6 Humph. 
(Tenn.)63; even instructions Sind information by telegraph have been held suffi- 
cient, i6 Fed. Rep. 93; or a xvarrant in the hands oi another officer^ 10 Mich. 
169 (in case of a felony, 68 Mich. 480.) For a breach of the peace committed in his 
presence he may arrest without a warrant, 3 Ind. 475; ^3 Ind. 60; 49 Ind. 56; 
16 Ind. 486; 23 Tex. App. 409. It must be committed in his presence or view, 
and be still continuing at the time of the arrest. He has no right to arrest 
after it is over, without a warrant, 3 Ind. 475; 40 Mich. 576; see 48 Mich. 495; 
30 Minn. 506; 7 Daly (N. Y.) 142, So long as he can detect the act amounting 
to a breach of the peace, although committed at some distance, it is done in his 
presence, 53 Mich. 493. He must immediately make the arrest upon the com- 
mission of the breach of the peace; and if he go away and return, or wait 
a while, he can not then make it, 9 J. & S. (N. Y.) 107; 3 Wend. 384; 16 S. C. 
486; 140 Mass. 573 (but see 9 Met. (Mass.) 259.) A breach of the peace may be 
an affrav, a riot, an assault, public and disorderly drunkenness, 9 Met. (Mass.) 
259; 23 Tex. App. 409; 5 Harr. (Del.) 491; 17 N. C. 58; 2 Nutt & McC. (S. C.) 
475; 86 N. C. 6S3; 15 111. 87; the wanton discharge of a firearm in a street to 
the disturbance of the peace, 53 Mich. 493; forcibly breaking open a door to a 
lodger's room under a bona fide claim of right, 9 Mo. App. 15; disturbing a 
religious, 3 Ind. 479; 4 Gr. (la.) 340, or other public meeting; exhibiting ob- 
scene pictures or making indecent exposures or postures of the person, 86 N. C. 
683; or interfering with a city's servants laying pipes in the street, 126 Pa. St. 
511. He may not arrest a common prostitute committing no ofi'ense in his 
presence, 22 Hun. 300; 41 Mich. 299; nor one not committing a breach of the 
peace, 59 Ind. 173. 

13. So the marshal or a police officer may arrest any person violating any 
city ordinance within his view, the same as if it were a breach of the peace, 43 
Ind. 60 ; 3 Ind. 475 ; 47 Ind. 289; 48 Ind. 19. But he can not act in such in- 
stances outside of the city, 9 Met. (Mass.) 259; 41 How. Pr. 481; except within 
the two-mile limit when the offense violates an ordinance extending over that 
limit- 

14. An officer can not arrest a person fraudulently refusing to pay the full 
amount of his meal in a restaurant, 2 Daly (N. Y.) 220. 

11^. An officer making an arrest has the right to search the person of the in- 
dividual arrested, and take from him any thing of a criminal nature, or that 
may aftbrd evidence of the commission of a crime, or may enable or aid him to 
escape, 21 Vt. 9; 47 N.H.482; but he may not take from him any thing what- 
ever, unless it fall within the description given above. 

16, As soon as arrested, whether with or without a warrant, for any offense 
whatever (36 Me. 317), the officer must, if the arrest is made in the day-time, 
forthivith take him before a magistrate having jurisdiction of the oftense, 
47 Ind. 289; 43 Ind. 60; 46 Ga. 80; 14 Minn. 385; 36 Me. 317; 75 N. C. 249; 
77 Ga. 419 ; and charge him by affidavit with the ofiense. The court of a 
justice of the peace is always open in the day-time; but if there be no justice 
present in the township at the time of the arrest, nor a mayor, he may de- 
tain the person arrested a reasonable time until their return, not to exceed 
eighteen hours. If the arrest is for a violation of an ordinance, then he can 
take such person only before the mayor. If the person arrested be so intoxi- 
cated as not to understand the proceedings, or is not in a fit condition for 
trial, he may detain him until he becomes sober, 47 Ind. 289 ; even though 
arrested when the court is sitting, 72 la. 145. He need not take him before the 
magistrate when the arrest is made in the night-time^ 47 Ind. 2S9; 43 Ind. 60; 
or perhaps after the close of the usual hours of business, if he can be presented 
to the magistrate before eighteen hours have expired, in case the arrest is by 
the marslial or a policeman. A delay in taking a prisoner before a n:iagistrate 
can only be justified " by the necessity of the case, and so long only as the 



\ 



§§ loj6a — 3076^] CITIES. [80 

necessity" exists, 3 Cush. 43S. An vmauthorized delay, or a release of the per- 
son by the officer arresting him, even though the person arrested be guilty, 
will subject the officer to an action for false arrest, or imprisonment, unless the 
prisoner expressly Avaives his right of action, loS Mass. 520; 75 X.C. 249; 125 
Mass. 198 ; 144 Mass. 294 ; but the officer may release him without danger 
as soon as he discovers that he is not guilty, 36 Me. 317. 

17. The officer arresting an offender may take and deliver him to the cou?ity 
jailer, or ^ut him in the city prison, and the jailer can confine him until such 
time as he can be tried, 43 "ind. 60; 47 Ind. 289; the jailer is bound to receive 
him without a mittimus, 8 S. & R. (Pa.) 47; 14 Gray, 226, unless he knows that 
the arrest was illegal, into which he is not even bound to inquire, 43 Ind. 60. 
The officer arresting may confine the prisoner in any reasonable place until the 
time of trial; as in the penitentiary, 2 Utah 284; a JDOx-car, 72 la. 145 ; but not 
in an unhealthy place, nor can the jailer confine him in such a place, 43 Ind. 60 ; 
and if a city maintains an unhealthy prison it will be liable to an-^ one injured 
by confinement therein, 77 N. C. 229. 

18. If the offender escape after arrest, the officer may pursue and capture 
him at any time thereafter; and the entire transaction will constitute but one 
arrest, 2 B. 294 (see 7 Ind. 582). 

19. It is lawful to resist an illegal arrest, and any one may interfere to pre- 
vent it, 8 Tex. App. 545; 9S.C.309; not, however, by using " excessive violence," 
76 N. C. 10; 69 111. III. The person resisting can not take the life of the officer, 
and if he does he will at least be guilty of manslaughter, 72 111. 37; 14 ]Nle. 138; 
3 Yerg. (Tenn.) 392; 24 Ala. 672; 4 Mass. 391; 44 Ala. 41; but if the officer is 
not known as an officer, although acting within his jurisdiction, resistance is 
justifiable, even to taking such officer' slife, 8 Tex. App. 545 ; 32 X. Y. 509; see 
13 Crim. Law Mag. 173. 

20. If an officer illegally shoot an offender, although the arrest is legal, 
such offender is justified in shooting the officer, on the ground o{ self -defense, 
44 Tex. 128; 2 Houst. (Del.) 608; see 13 Crim. Law Mag. 173. 

21. Injunction wall not lie to prevent an arrest, 75 N. Y. 362; 63 How. Pr. 
396; 12 Abb. (N. S.) 4fo; but it will to prevent the enforcement of a void ordi- 
nance, 14 Barb. 425. 

22. A -cvarrant issued by a justice or mayor to a marshal or constable, in a 
criminal case, and certified to by the clerk of the circuit court, authorizes such 
marshal or constable to pursue and arrest the person named in it within any 
county of the State, 41 Ind. 181, R. S. 1881, § 1625. 

23. An offender /;/ the legal custody of an officer may be arrested by an- 
other officer on another charge, if the former will permit it, 12 Ind. 660. 

[2 R. S. 1852, p. 480. Approved May 27, 1S52, and in force May 6, 1853.] 

Sec. 3076^. Acts tlirongh county — Citizens to aid. 6. Con- 
stables, in the discharg-e of their duties, shall have poAver to act 
throughout their respective counties, unless specially restrained by 
law ; and, Avhenever necessary, may call upon any number of citi- 
zens to assist them in the discharge of their duties, who shall not 
refuse such assistance, under such penalty as may be prescribed 
by the criminal law. [R. S. 188 1, § 5979.] 

Sec. 3076^. Mittimus — Eeceipt 7. Whenever any constable 
shall commit to jail any prisoner in his custody, he shall leave with 
the jailer the writ by authority of which he commits such prisoner ; 
and such jailer shall give him a receipt therefor, containing at 
length a copy of such writ. [R. S. 1881, § 5980.] 

Sec. 3076<:. Where may arrest fugitive. 8. In executing a war- 
rant for the apprehension of any fugitive from justice who has fled 
into another county from any county in this State, a constable may 



8i] marshal's duties. [§§ 3077, 3077(^ 

arrest such offender in any county where he may be found ; but, if 
such offender shall request it, he shall not remove him from such 
county without taking him before some officer authorized to issue 
and try writs oi habeas <:<?;^?/i', ' and giving such offender time to 
make application for such writ. [R. S. 1881, § 5981.] 

1. This section and v) 1625, R. S. 1S81, as amended, are to be construed to- 
gether; and it seems that the constable must have the clerk's certificate required 
bv the latter, before he is authorized to make the arrest in another county, 41 
Ind. iSi. 

2. The three sections above are applicable to marshals of cities. 



[1S81 S., p. 109. Approved and in force April 9, 1881.] 

Sec. 3077. Same fees as constables. 2. City marshals shall be 
entitled to the same fees as constables, as well while acting in the 
capacity of marshal as constable. 

Before the passage of this act in 1881 he was entitled to no fees, 69 Ind. 244. 
[1875 S., p. 31- Not approved by the governor, but in force August 24, 1875.] 

Sec. 3077^. Fees. 26. Constables shall receive fees as follows : 

For serving a summons or warrant on each person named therein, 
twenty-five cents.* 

For copy of the process left at residence of defendant, twenty- 
five cents. 

For serving subpoena for each person therein named, twenty 
cents. 

For returning each writ, ten cents. 

For bail bond, twenty-five cents. 

For serving execution, twenty-five cents. 

For commitment to prison, twenty-five cents.- 

For sale of goods, when the value of goods does not exceed six 
dollars, twenty-five cents. 

On all sums above five dollars, five per centum. 

On all moneys collected on execution without sale, one-fourth 
of the above commission. 

For returning execution, ten cents. 

For summoning a jury in any case, fifty cents. 

For posting up advertisements of sale, thirty cents. 

In criminal cases, for serving warrants on each person named 
therein, twenty-five cents. 

For serving subpoena, twenty-five cents. 

For attending examination on trial of a person charged with a 
crime or misdemeanor, twenty-five cents. 

If more than one, additional for each, twenty-five cents. 

For commitment of each person to prison, twenty-five cents. 

For services not herein enumerated, the same fees as in civil 
cases. [R. S, § 5985.] 
6 



§§ 3077^. 3078] CITIES. [82 

[1879 S., p. 130. Approved March 31, 1879, and in force May 31, 1879.] 

Sec. 3077Z?. Mileage. 35. Constables' mileage, for each mile 
necessarily traveled in going and returning to serve process and 
subpoena, ten cents. [R. S. § 5986.] 

[1S67, p. 33. Approved and in force Marcli 14, 1867.] 

Sec. 3078. City attorney's duties and fees. 30. The city attor- 
ney shall be the legal adviser of all the officers of the city in rela- 
lation to their official acts, and shall advise the council upon all 
matters of law which may be submitted to him in reference to the 
action of such council. He shall draw all contracts, ordinances, 
and legal documents which may be required of him by the com- 
mon council, and do and perform all other acts pertaining to the 
duties of his office. He shall prosecute all actions in favor of the 
city, and defend all actions brought against such city for any cause ; 
but in no case shall the city be liable for costs. The city attorney 
shall be allowed a docket-fee in all cases tried. before the mayor or 
city judge, for violations of the city ordinances or upon appeals 
from judgments to the circuit court, when he appears in person or 
by deputy, as follows: 

Docket-fee before the mayor or city judge, on a plea of ** guilty, " 
two dollars. , 

Docket-fee before the mayor or city judge, on a plea of "not 
guilty," four dollars. 

Docket-fee in cases in the circuit court, upon appeal on a plea 
of '* guilty," two dollars and fifty cents. 

Docket-fee in cases in the circuit court, upon appeal on a plea 
of "not guilty," five dollars. 

1. He may be removed by a majority vote, but if charges are preferred, a 
two-thirds vote is necessary, 32 Ind. 74. His dismissal can not be shown by pa- 
rol, nor can the amount of his salary or employment be thus shown. If no rec- 
ord was made of his employment or the fixing of his salary, an entry of such 
action may be made nunc fro tunc; and must be before such facts can be shown, 
64 Ind. 319. But if an attorney is employed by a city for a special purpose, in 
open council or by a proper committee, and under such employment he perform 
services which are accepted by the city, the latter can not refuse to pay him on 
the ground that no record thereof Avas ever made, 116 Ind. 15; 30 Vt. 285. Nor 
can the city avoid paying for such services on the ground that the amount ex- 
ceeds the debt allowed by the constitution, 116 Ind. 15; see § 220, note. The 
city is not liable for the docket fees, even though it has received their value 
from the services of the convicted person, 53 Ind. 508, 

2. The city is liable for services rendered under employment from it to an 
attorney in defending its marshal in an action brought against him for false im- 
prisonment, 103 Ind. 196; 90 N. C. 427; 2 Col. 588. So it may employ an attor- 
ney in addition to its regularly-elected attorney, 116 Ind. 15; 13 CaL53i; 40 N. 
J. L. 186. The city attorney has power to take an appeal from a judgment, 
either for or against a city, and to take all the necessary steps to perfect it, 114. 
111. 233. Acceptance of the office by an attorney will estop him from claiming 
more than the salary allowed by the city ordinance, 80 Mo. 484; 34 Ark. 303; 
102 N. Y. 13; 58 Tex. 334. The city is bound by his agreement in writing to 
refer a certain case, acted upon by the court, 55 N. H. 559. On appeal in an 
action on a penal ordinance, the city attorney, in case of a conviction in the 
circuit court, is entitled to both his fees before the mayor and in the circuit 
court, 114 Ind. 542. 



83] treasurer's duties. [§§ 3079, 3080 

Sec. 3079. Treasurer's duties. 31. The treasurer shall receive all 
moneys, notes, bonds, and orders belonging to the city, and keep 
an accurate account of the amounts received and paid out by him ; 
and no money shall be paid out of the treasury by him, except 
upon an order signed by the mayor or presiding officer of the 
common council, and countersigned by the clerk. 

1. City treasurer in large cities abolished, Appendix II, § i. In any city 
having a population of less than 70,000, the common council may require the 
county auditor to extend the city levy upon all property within the city upon 
the county tax duplicate, and vv^hen so entered the county treasurer collects and 
pays the amount collected over to the city treasurer, § T,22^a. 

2. The doctrine held in some doubtful cases as to the conclusive character of 
the reports of the state and county ol^cers against themselves and their sureties, 
is not applicable to city treasurers, 63 Ind. 155. See 93 Ind.311. Changed by 
statute, § 6507. 

Sec. 3080. Duties of treasurer and clerk. 32, All moneys due to 
or collected for such city on any account whatever shall be paid" to 
the city treasurer, who shall, for all sums received by him, issue a 
receipt to the person paying the same; which receipt, except for 
taxes charged on the duphcate, such person shall file with the city 
clerk, who shall thereupon issue a quietus to such person, and 
charge the treasurer with the amount therein specified and upon 
what account paid. He shall receive city orders that are due, in 
payment of any debt, tax, or assessment due such city; and when 
an order is received by him for any debt, tax, or assessment due 
such city, or otherwise paid or redeemed, he shall cancel the same 
by writing or stamping upon the face of such order the word 
** redeemed" and the date of redemption; and such order shall 
never again be put in circulation. He shall also, in like manner, 
cancel all bonds or other evidences of indebtedness redeemed or 
liquidated by him. He shall register all orders by him so re- 
deemed in a book to be furnished him for that purpose, in the 
same manner as the clerk is required to register such orders ; he 
shall also register all receipts given by him as required in this act, 
except receipts for taxes charged on the tax duplicate. 

See § 3179, »ofe i, and § 3'22^a, when treasurer does not collect taxes. For 
suit upon orders, and set-off, see § 3069, note. 



Receipt. 
No 



Received of 



,Ind., , iS... 

, dollars cents, 



on account of 

$ 



Quietus. 



City Treasurer. 

., Ind., , iS... 



has this day filed in my office City Treasurer's Receipt No for 

dollars, cents, 

on account of 



City Clerk. 



3o8i, 3082] 



CITIES. 



[84 



Register of Orders. 




To whom payable. 



Register of Receipts. 



No. 



Date. 



Amount. 



To whom given. 



On account of. 



[1875, P- 28. Approved March 11, 1875, ^'^^ i^ force August 24, 1875.] 

Sec. 3081. Treasurer's duties — Interest, i. The city treasurer 
shall pay all orders issued by the city of which he is such treasurer, 
when presented, whether indorsed or not as hereinafter stated in 
this act, if there be money in the treasury, appropriated for that 
purpose, sufficient to pay the same ; if there be not money enough 
thus to pay such orders, he shall write or stamp on the back thereof, 
over his name, the date of such presentation, and note same ** in- 
dorsed," in a register of orders to be provided him for that pur- 
pose ; and such orders shall be entitled, thenceforth, to draw legal 
interest until there shall be money on hand sufficient to pay the 
same. 

Sec. 3082. Interest — Orders receivable. 2. Whenever there 
shall be money on hand to pay all outstanding orders which have 
been indorsed prior to any given date, the treasurer shall publish 
notice of such fact, by three insertions in some newspaper of gen- 
eral circulation in such city, and that such outstanding orders will 
be redeemed on presentation; and interest shall cease on such 
orders from and after the date of such publication : Provided, That 
city orders shall be received in payment of taxes for general pur- 
poses, and for all claims and demands due or belonging to the gen- 
eral fund of the city, without regard to priority of presentation or 
date of issue ; but the treasurer shall not pay any balance thereon, 
over and above the amount of such tax, claim, or demand, when 
there are outstanding orders unpaid for want of funds. 

1. The rate of interest is six per centum. If he do not pay or indorse the 
order, he will be liable for the full amoujit with six per cent, interest, 56 Ind. 288. 

2. If there is no money in the treasury of a city having a voting population 
of 16,000, a warrant can not be drawn upon it, § 3123. 



S5] 



TREASURER S DUTIES. 



[§ 3083 



Notice Concerning City Orders. 

Notice is hereb}' given to the holders of city orders Nos. [or, to all 

the holders of city orders], of the city of , that there is now money on 

hand in the city treasury to pay all such orders; and that interest thereon will 
cease the day of , 18 — . 



City Treasurer. 
[1S67, p. 33. Approved and in force March 14, 1867.] 

Sec. 3083. Treasurer's statements and liability. 33. The treas- 
urer shall, on the last day of each month, furnish to the clerk a 
statement of all the receipts and disbursements made by him dur- 
ing the month, and the balance then in the treasury belonging to 
each fund, general and special, and also deliver to him all the orders 
redeemed and canceled by him during the same period, taking the 
clerk's receipt therefor ; which statement with the orders redeemed, 
the clerk shall lay before the common council at its next meeting, 
to be disposed of as the common council may direct. The treasurer 
shall, at least fifteen days before any annual election, and at all other 
times when so required by the common council, render a full ac- 
count of the receipts and expenditures for the current year, and 
the general condition of the treasury. He shall also, at his own 
peril, keep the moneys of the city safely. 

1. This section applies to cities having a population of 70,000, where the 
county treasurer collects the tax. Appendix II, § 2 ; and such county treasurer 
must make reports to the common council of such cities the same as a city 
treasurer in smaller cities, 106 Ind. 415. 

2. The treasurer is the absolute owner of the money in his hands, and may 
loan and collect for himself all interest accruing by virtue of such loan, 53 Ind. 
331; 36 Ind. 346. He may receipt for the am,ount of a judgment recovered on 
the bond against his defaulting predecessor, 70 Ind. 314. He may keep the city 
funds wherever he sees fit, and the council can not control his discretion there- 
in, 22 Ind. 125; III Ind. 170; see 66 Ind. 386. He is not bound, perhaps, to look 
beyond the face of the order, to see if the clerk and mayor had authority to 
issue it, 66 Ind. 386. If he hold bonds owned by the city, and sell them at a 
premium, he must account for the principal, interest and premium, 96 Ind. iii. 



Clerk's Receipt of Canceled Orders. 



-, Ind., — , 18— 



No. 

Received of A. B., treasurer of said city [or, of county], the fol- 
lowing canceled orders, to wit: 



No. Date. 



To whom payable. 



On account of. 



CD., 

City Clerk. 



§3o83] 



CITIES. 



[S6 



Treasurer's Monthly Report to Clerk. 



RECEIPTS. 



To A. B., Clerk of the City of .• 

Sir: I herewith submit an itemized statement, showing the receipts by 
the treasury of said city during the month of , i8 — , viz.: 



Accounts. 



Board of Health, 

Bridges, 

City Assessor's Department, . . . 
City Civil Engineer's Department, 

City Dispensary, 

City Hall, 

City Hospital [and Branch], . . . 
City Treasurer's Percentage, . . . 

Cisterns, 

Elections, 

Fire Department, 

Fountains and Driven Wells, . . . 

Gas, 

Incidentals, 

Interest on Bonds, 

Judgments and Costs, .... . 

Markets, 

Market Master's Fees, 

Parks, . 

Police, 

Printing, 

Salary, 

Sewers, ...••* 

Station House, 

Street Improvements, 

Street Openings and Vacations, 

Street Repairs, 

Taxes Refunded, 

Water Rent, ......... 



Amount. 
Dols. Cts 



Total. 
Dols. Cts. 



For School Fund, 
For Sewer Fund, 
For Smking Fund, 



SPECIAL FUXDS. 

From Special Sewer Fund, 



Total Received, 



City [or, Count}-] Treasurer. 



8/-] 



TREASURER S DUTIES. 



[§ 3084 



DISBURSEMENTS. 



I also herewith submit the amount of the disbursements of said treas- 
ury for the montli of , iS — , viz.: 



Accounts. 



Board of Heahh, 

Bridges, . . ... - . . . . 

City Assessor's Department, . . . 
City Ciyil Engineer's Department, 

Citj Dispensary, 

City Hall, 

City Hospital, and Branch, . , . . 
City Treasurer's Percentage, . . . 

Cisterns, . . . 

Elections, . . . 

Fire Department, 

Fountains and Driven Wells, . . . 

Gas, 

Incidentals, 

Interest on Bonds, 

Judgments and Costs, 

Market, 

Market Master's Fees, ...... 

Parks, 

Police, . . . , 

Printing, 

Salary, 

Sewers, 

Station House, 

Street Improvements, 

Street Openings and Vacations, 

Street Repairs, - 

Taxes Refunded, 

Water Rent, 



Amount. 
Dols. Cts. 



Total. 
Dols. Cts 



School Fund, 
Sewer Fund, 
Sinking Fund, 



SPECIAL FUNDS. 

Special Sewer Fund, . . 



Total Disbursements, 



County [o;-, City] Treasurer. 

[This form can be used, by making slight verbal changes, for the annual re- 
port.] 

Sec. 3084. Treasurer's assessments. 34. The treasurer shall re- 
quire of each and every person whom the assessor failed to list, a 
statement of his taxable property and the value thereof, which 



§§ 3085, 3o86] CITIES. [88 

shall be given under the same regulations as if furnished by the 
assessor ; and for that purpose the treasurer is authorized to admin- 
ister the necessary oath or affirmation. If such person fail to 
furnish such statement, the treasurer shall value the same as the 
assessor is required to do in like cases. 

The treasurer is now governed bj the state law (§§ 3160, 3263, 118 Ind. 323), 
being § 6456, in assessing omitted property. Surplus, §3090 and 6 6432. 

Sec. 3085. Collecting delinquent taxes. 35. The treasurer is not 
required, in any instance, to make a demand of taxes from the 
persons charged therewith, but may, in his discretion, do so ; and 
if any person charged with a poll-tax, or any tax upon personal 
property, or any tax upon real estate, shall fail, when called on, to 
pay the same, together with all interest, penalties, and costs, it 
shall be lav/ful for said treasurer to seize the chattels of such de- 
faulter forthwith, and make sale thereof, as provided in this act, to 
satisfy the same ; and should there be a surplus, after such sale 
and payment, he shall pay the same to the said person making 
such default. 

1. Only the city or county (§ 3225^) treasurer is authorized to collect the 
taxes ; and a contract with any one else to do so is void, 88 Ind. 62. In large 
cities the county treasurer collects. Acts 1885, p. 13. 

2. The " demand" here referred to is one that can be made before the tax 
becomes delinquent. He can make no levy until after the third Monday in 
April, §§3087, 3160, 3263. 

Sec. 30S6. Lien of taxes. 36. The lien of such incorporated 
city for all taxes, general or specific, shall attach on all real estate 
on the first day of April annually ; and such lien shall be perpetual 
for all taxes due from the owner thereof, which have heretofore 
accrued or shall hereafter accrue, with the interest and penalties in 
each case, until payment; which lien shall in nowise be affected or 
destroyed by any sale or transfer of any such real estate. All the 
property, both real and personal, situate in any incorporated city 
shall be liable to the payment of all taxes, penalties, interest, and 
costs charged to the owner thereof in such incorporated city; and 
no partial payment of any such taxes, penalties, interest, or costs 
shall discharge or release any part or portion of such property, 
until the whole be paid ; which lien shall in nowise be affected or 
destroyed by any sale or transfer of any such personal property. 
All taxes upon real estate shall be a lien thereon to the same extent 
as a judgment of a court of record of general jurisdiction, and 
shall have preference to any private charges upon the same; and 
all taxes upon personal property shall have preference over private 
claims. 

§§ 6446 and 6447 are applicable to the lien of city taxes by virtue of §§ 3160, 
3263; 118 Ind. 323. Personal taxes assessed against the owner of a lot become 
a lien thereon, for the payment of which it is liable to be sold, 14 Ind. 465; 41 
I"'i-353 i 76 Ind. 130; even a poll-tax constitutes such a lien, 41 Ind. 410. The 
tax-payer may now make a partial payment and have it applied to a particular 
piece of property, but such payment does not discharge such property from 



89] treasurer's duties. [§§ 3087 — 3089 

the lien of the remaining taxes owed by such tax-paver. See §§ 644S, 6449. Con- 
flicting liens of city and county taxes, which is superior, § 3160, 7io^e ^. 

Sec. 3087. Collecting taxes. 37. Immediately on receiving the 
tax duplicate, the city treasurer shall proceed to collect the same, 
and shall give notice, by publication in some newspaper having a 
general circulation in such city, for three successive weeks, stating 
in such notice the amount of tax charged for general or specific 
purposes on 'each one hundred dollars' valuation, also, the amount 
of poll-tax, and, also, the day on which the penalty will attach for 
non-payment of such taxes. In case any person shall refuse or 
neglect to pay the tax imposed on him, the city treasurer shall, 
after the third Monday of April, levy the same, together with ten 
per cent, damages, and the costs and charges that may accrue, by 
distress and sale of the goods and chattels of such person who 
ought to pay the same, wheresoever the same may be found in the 
city. The power to levy and collect shall continue in such treas- 
urer after his return and settlement with the city clerk, until the 
taxes shall be paid, should goods or chattels of the delinquent be 
found within the city. The said treasurer shall, annually, on the 
first Monday of August, file with the city auditor schedules of all 
such delinquent taxes collected by him, verified by oath or affirma- 
tion, and shall be charged by the clerk with the amount collected. 

Payment in installments. See § 3225a and § 3160^, The county treasurer 
may be required to collect city taxes, § 3225a. JVoh'ce, § 6424 ; dema7id of delin- 
quents, § 6427; person about to remove from city [or county^ § 6433; 118 Ind. 
323. 

Sec. 3088. Sale of land for taxes. 38. If no goods or chattels 
can be found, out of which to make the tax, penalties, interest, 
and costs charged against any person named in such duplicate, the 
treasurer shall sell any lot or land, or so much thereof as may be 
necessary, listed to such person, to pay the tax, with interest, 
penalties, and costs thereon ; and the treasurer's certificate to the 
purchaser shall state for what tax or taxes, interest, penalties, and 
costs, said lot or parcel of land was sold ; Vv^hich certificate shall be 
prima facie evidence of all the facts therein set forth. 

1. Sales are conducted under the general law of the State for the collection 
of taxes. See §§ 3094, 3160, 3263, which is found from §§ 6457 to 6465, and 
amendments. The sale in all respects is conducted like a sale by the county 
auditor, and takes place on the second Monday in February, § 6458; 118 Ind= 
323; conflicting liens of county and city taxes, and sales thereon, § 3160, note 4. 

2. The city can not purchase property sold by it, nor Avarrant the title of a 
purchaser at a tax sale. If the tax sale proves invalid, the tax-payer has no 
remedy against the city, 84 Ind. 467. 

Sec. 3089. Notice of sale of chattels. 39. The treasurer shall 
give public notice of the time and place of sale of all goods and 
chattels to be sold, at least ten days previous to the day of sale, 
by written and printed advertisements, to be posted up in at least 
three public places in the city where such sale shall be made. 



§§ 3090^ 3091] CITIES. [90 

Sec. 3090. Chattels at auction. 40. Such sale shaH be made at 
public auction. No more property shall be sold than is sufficient 
to pay the tax, penalties, interest, costs, and charges ; and, if con- 
venient, it shall be sold in parcels ; and if sold for more than the 
amount necessary, the surplus shall be returned to the owner 
thereof. 

For the law relative to levy and sa,les, see y§ 6429 to 6434; 118 Ind. 323. Col- 
lecting tax from corporations, see §§ 6435 to 6437. 

Sec. 3091. Land, how sold. 41. In selling lots and parcels of 
land the treasurer shall offer the least quantity thereof that any 
bidder will take, and pay the amount of tax, penalties, interest, 
damages, and costs assessed ; and he shall make, seal, and acknowl- 
edge, before some competent authority, a certificate of the land 
thus sold to such person. Before making such sale, the treasurer 
shall give notice, not less than twenty days, in a newspaper printed 
and published in said city, that, on a certain day therein nam.ed, 
he will offer for sale the lands and lots on which taxes shall remain 
unpaid, or so much thereof as shall be necessary to pay said taxes, 
penalties, interest, and all costs and charges made by reason of the 
failure to pay said taxes. If such city is a county-seat, it shall be 
made at the court-house door; if not, it shall be made at the door 
of the city-hall or other place of meeting of the common council. 

For the general tax law governing sales, see §§ 6457 to 6465. For treasurer's 
guaranty see § 6465; 118 Ind. 323. The city is liable for printing the delinquent 
list, even though it had been once printed, Avhen printed by its order, 59 Ind. 324. 



Certificate of Tax Sale. 

Whereas, on the day of , A. D. 18 — , the tax duplicate of the 

city of , in county, and State of Indiana, for the year eighteen hun- 
dred and , duly attested, and Avith the warrant required by law thereto at- 
tached, was by the clerk of said city delivered to the undersigned, treasurer thereof, 
for collection : And whereas, it appeared from said duplicate, that there 
had been assessed upon the lots hereinafter particularly described, situated in 

said city as the property of , the amounts following, to v^-it: .upon 

the sum of -dollars for the year 18 — , and the sum of dollars for delin- 

quenttaxes of the year 18 — , , all of VvhichAvas then due and unpaid: And 

whereas, there had accrued on said taxes a penalty in the sum of dollars, 

and for interest the sum of dollars, and for costs the sum of dol- 
lars; And whereas, the undersigned, treasurer as aforesaid, finding no goods 
or chattels out of which to make said taxes, or any part thereof, and having 
advertised the said real estate for more than twenty days next before the day of 

sale, in a newspaper printed and published in said did on the "<^ay 

of , A. D. 18 — , offer for sale at public auction, at the door of the 

of said county, in said city the least quantity of said lot. .,that any one would 
take and pay the amount of said taxes, interest, penalty, and costs, so assessed 

against the said as aforesaid, and no person bidding for less than the 

quantity hereinafter described, the same was then and there openly struck off 

to for the sum of dollars, that being the highest and best price 

offered for the same. Now, therefore. In consideration of the premises, and of 

the payment of said sum of dollars, so bidden by the said , as 

aforesaid, the receipt of which is hereby acknowledged, I, , treasurer of 

the , do hereby certify that the said will be entitled to a deed for 



91] 



TREASURER S DUTIES. 



[§ 3092 



the premises so purchased by him as aforesaid, to wit: ,at the expiration 

of two years from the date of this certificate, unless the same shall have been 
previously redeemed according to law. 

In witness whereof, The said treasurer has hereto set his hand and seal, this 

dav of , A. D. iS— . 

[Seal.] 

Clerk of the Citv of . 



State of Indiana, — 

Before me, 

the above named — 



- County, ss: 

— , a within and for said county, personally came 

■, clerk of , and acknowledged the execution 

of the above and foregoing certificate for the uses and purposes therein men- 
tioned. 

Witness mv hand and seal, at , this dav of , A. D. 

iS— . ' 



o ^ 

5; O 









Treasurer's Warranty. 



I, 



~, treasurer of the city of , do hereby guarantee and war- 
rant that the taxes due upon the land described in the within certificate of tax 
sale, and for which the same was sold, were due and delinquent for the years 
therein named, and that the same has never been paid by the owner of said land 
nor by any person on his behalf, and that the same were yet due and unpaid at 
the time of the sale thereof named in such certificate. 

In testimony whereof, I have hereunto set my hand and seal, this dav 

, 18—. 



of 



.[Seal. 



Citv Treasurer. 



Sec. 3092. Eetiirn of land sold — Redemption. 42. It shall be 
the duty of the treasurer, immediately after the sale of any lot or 
parcel of land, to make return of the same to the city clerk, dis- 
tinctly stating the lot or parcel of land sold, the name of the pur- 
chaser, the day of sale, and the amount of tax, penalties, interest, 
and costs for which it was sold ; and any owner or claimant there- 
of, his agent or attorney, may redeem the same, upon the terms 
and in like manner as the lands sold for state and county taxes are 
redeemed, by payment to the city treasurer. 



L 



3092] 



CITIES. 



[92 



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r S 2 
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a 7. 
? S 




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1 

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in 








4. K H 






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93] treasurer's duties. [§§ 3093, 3094 

Sec. 3093. Annual settlement. 43. The city clerk and treasurer 
shall attend at the office of said clerk on the third Monday of April 
annually ; and the treasurer shall then and there make settlement 
with the clerk for the amount of taxes for which said treasurer is 
to stand charged, as follows : 

First. The clerk shall take from the duplicate in the hands of the 
treasurer for collection, a list of all such taxes as said treasurer shall 
have been unable to collect, therein describing the property on 
which such delinquent taxes are charged as the property is de- 
scribed on such duplicate, and shall note therein, in a marginal 
column, the reasons assigned by such treasurer why such taxes 
could not be collected. 

Second. Such list shall be signed by the treasurer ; and he shall 
also testify to the correctness thereof, under oath or affirmation, to 
be administered by the clerk. 

Third. The clerk shall forthwith record such list of delinquencies 
in a book to be kept in his office, and deliver copies of the same to 
the treasurer for collection ; and the treasurer shall make return of 
such collections in the manner provided for in the thirty-seventh 
section of this act [§ 3087]. 

1. For conclusiveness of such settlement, see § 3079, «o/^, and § 6507; § 6500 
also applies to these settlements. For mistake made, see § 6504; liability for 
failure to return, see § 6505; refunding^ see § 6510; 118 Ind. 323. 

2. A second settlement takes place on the first Monday in November, at 
Avhich time the list oi delinqiiejit lands is made out, §6500. 

Sec. 3094. Fees on forfeited lands. 44. The treasurer shall be 
entitled to such fees for collections made by distress and sale, and 
charges for keeping and removing property distrained, as are paid 
to county treasurers for like services. In case of no sale of any 
lot or parcel of land for want of bidders, the treasurer shall so re- 
turn to the common council ; and the said lot or parcel of land 
shall thereafter be considered as forfeited to such city, to be dis- 
posed of as the common council shall thereafter, by ordinance, 
direct; but no disposition shall be made by such common council 
until after the expiration of four years from the date of such for- 
feiture; and until so disposed of or redeemed, such lot or parcel 
of land shall be continued on the duplicate, charged with all arrear- 
ages for which it was forfeited, and interest and ten per cent, dam- 
ages per annum, and shall be annually assessed and charged with 
all accruing taxes, penalties, and interest, as other lands. Such 
land shall annually be offered for sale, with and on the same terms 
as other delinquent lands; and, until sold for the amount of all 
arrearages, may be redeemed, as provided in section forty-two 
[§ 3092], on payment of the same into the city treasury by the 
owner or owners thereof. All sales by the treasurer for delinquent 
taxes, and the giving of certificates and conveyances therefor, shall 
be conducted in the like manner as by the county treasurer under 
the general law of the State ; but such conveyance shall be made 



§3095] ciTJES. [94 

to such purchaser in the corporate name of the city ; which certif- 
icates and deeds of conveyance shall be pidma facie evidence of all 
the facts stated therein. 

1. 1^\\Q. fees allowed under this section for the collection of taxes are the 
same as county treasurers receive for similar service (§6434); and their fees 
are the same as a constable receives on an execution sale, § 3077-^ ; 74 Ind. 133, 
Thej do not include the percentage allow-ed county and city treasurers for 
similar services (R. S. 1881, § 5928), and such fees and charges are collectible 
out of the property of the tax-payer in each case, and can be deducted from the 
amount of the tax, interest, and penalty, only in case the sum realized is insuf- 
ficient to pay both, 74 Ind. 133. The application of the state tax law {^^ 3160, 
3363,) did not change this rule, 74 Ind. 133. 

2. Tax sales by cities was legalized in 1S75, ^cts 1S75, p. 14S. See 74 Ind. 

133- 

3. For form of deed, see § 6480, which can be modified to suit a tax deed 
issued by a city. "This tax deed of the city must be issued in its corporate 
name, and be signed by the city clerk and sealed with the corporate seal. The 
mayor does not sign it, as is the practice in some cities ; for he, under the 
state tax law, is not the corresponding officer of the city to the county auditor; 
that officer is the clerk. See § 3160, 7zote. 

4. For collection from unsold realty, see 6§ 6491 to 6494; for tax titles, see 
§§ 6495 to 6499; re-imburscment of purchaser, § 6487; 118 Ind. 323. 

Sec. 3095. Oath — Bonds. 45. The mayor, each member of the 
common council, city clerk, assessor, civil engineer, street com- 
missioner, marshal, city attorney, and treasurer shall each, before 
entering upon the duties of his office, take and subscribe an oath, 
to be indorsed upon the back of his certificate of election, before 
some officer authorized to administer the same, to support the 
constitution of the United States and the constitution of the State 
of Indiana, and to faithfully and honestly discharge the duties of 
his office; which oath, with his certificate of election, shall be 
filed with the city clerk. And each of said officers, except mem- 
bers of the council, shall, in like manner, execute a bond, with 
approved security, payable to the State of Indiana in such penal 
sum as the common council shall, by resolution or ordinance, order 
and direct, conditioned for the faithful performance of the duties 
of his office and the payment of all moneys received by him ac- 
cording to law and the ordinances of such city: Provided, however, 
That in no case shall the mayor's bond be fixed at a less sum than 
three thousand dollars, nor shall the treasurer's bond be fixed at a 
less sum than double the amount of the estimated tax duplicate of 
the current year ; which bonds shall be filed with the city clerk, 
except the bond of the clerk, which shall be filed with the city 
treasurer. 

1. As to mayor's bond, see, also, § 3062. 

2. This section authorizes the bond of the clerk to be conditioned for the 
payment of all moneys received by him according to law and the ordinances of 
the city; nor can either he or his sureties contest the validity of an ordinance 
under which he has received moneys, on the ground that they" should have been 
paid, by the provisions of the statute, to the city treasurer, 120 Ind. 166. 

3. The bond, in an action thereon, must be set out as an exhibit; but an 
ordinance affecting the treasurer's liability on such bond need not be, and if so 



95] OFFICIAL BONDS. [§ 3O95 

done it will not be considered as constituting a part of the complaint, 63 Ind. 

4. For liability for moneys received by the sale of water-works bonds, see 
63 Ind. 155. 

5. Freehold sureties are not required, unless by an ordinance of the city. 
The council in open session approves the bonds, except the mayor's, § 3062. 
The signatures to them should be acknozvledged before an officer authorized to 
take acknowledgments, R. S. 1881, § 5533, although this is not compulsory, 32 
Ind. 313. Sureties obtaining a release^ or when new bond required, procedure. 
R. 8.1881,665538 to 5551. 

Certificate of Election. 

Office of City Clerk, , Ind., , iS— . 

To All Whom it May Concern: 

This is to certify. That in pursuance of the provisions of the general 
law for the incorporation of cities of this State, and the acts of the legislature 
supplemental thereto, the board of inspectors of an election have filed with me 

a certificate setting forth and declaring that at a election held in said 

city, on the day of , 18 — , was duly elected to the office of 

, in and for the said city of , to serve as such for the term of , 

and until his successor is elected and qualified. 

In witness v\-hereof, I have hereunto set my hand, and affixed the seal of the 
city, this day of , 18 — , 



Citv Clerk. 
[City Seal.] 

Oath of Office. 

State of Indiana, County, ss : 

I, , do solemnly swear that I will support the constitution of the 

United States, and the constitution of the State of Indiana, and that I will 

faithfully and impartialh' discharge my duties as of the city of , 

according to law, and to the best of my ability, so help me God. 



Subscribed and sworn before me, this day of , li 



Official Bond. 

State of Indiana^ County, ss: 

Kno-jj all Men by these Presents: 

That we, — and , of the county of , and State of Indi- 
ana, are held and firmly bound unto the State of Indiana, in the penal sum of 

— dollars, for the payment of which sum, well and truly to be made, we do 

by these presents firmly bind ourselves, our heirs, executors, and administrators; 
sealed with our seals, and dated this day of , 18 — . 

Now, the condition of this obligation is such. That, whereas, the abo^•e bound 

was on the day of , 18 — , duly elected by the of the 

■ of to fill the office of — in and for the said ot 

county, Indiana, for the term of and until his successor is elected and 

qualified. 

Now if the said shall well, truly, faithfully, and impartially discharge 

the duties of his said office, and pay over, according to law, all moneys that may. 



§ 3095] CITIES. [96 

bj virtue of his said office, come into his hands, tlien this bond shall be null and 
void, otherwise to remain in full force and effect in law. 

In witness whereof, we have hereunto set our hands and seals, the day and 
year above written. 

[Seal.] 

^ [Seal.] 

[Seal.l 



State of Indiana^ County, ss: 

Personally came , principal, and , sureties on the within 

bond, and severally acknowledged the execution of the same for the uses and 
purposes therein expressed, without condition or reservation. 

In testimonv whereof, I have hereunto set mv hand and seal, this 

dav of , A. D. 18— . 



Entry of Approval of Bonds. 

Be it remembered, that the bond of A. B., marshal-elect of the city, 

with CD. and E. F. as sureties, in the penal sum of dollars, is hereby 

approved, and the clerk is ordered to receive and file the same. 



Ordinance Fixing the Amount of Official Bonds. 



Sec. I. Be it ordained by the Common Council of the City of .• 

That the penal sum of the of^cial bonds of the following named offi- 
cers shall be, and the same is hereby, fixed at the following amounts: 

That of the mayor at the sum of dollars. 

That of the city clerk at the sum of dollars. 

That of the assessor at the sum of dollars. 

That of the civil engineer at the sum of dollars. 

That of the street commissioner at the sum of dollars. 

That of the m.arshal at the sum of dollars. 

That of the city attorney at the sum of dollars. 

That of the treasurer at a sum not less than double the amount of the esti- 
mated city tax duplicate of the year in which he shall give it. 



Demand for Possession of Office. 



State of Indiana^ City of , ss: 

To ^formerly [set forth the title of office] of said city of .• 

You are, hereby, notified that I have been elected \or, appointed] 

to the office of , as your successor, and having been commissioned and 

having qualified as such, do request that you deliver to me, as such successor, 
all property, books, and effects, of every description, in your possession belong- 
ing to the said city; or appertaining to said office of . 

Dated this day of , 18 — . 



97^ 



MEETINGS OF COUNCIL. 



[§ 3096 



ARTICLE 2— GOVERNMENT AND POWERS. 



SEC. 
3096. 



309S. 

3099- 
3100. 
3IOO(7. 

lioob. 

2,100c. 

2,1 Gcd. 

3100^. 

3100/. 

3101, 

3103. 

3103. 

3104. 

3105- 
3106. 

3107- 

310S. 

3109. 

3110. 

3iiOrt. 

3110^'. 

3111. 

3112. 

3113- 

3114- 

3115- 

3ii5«- 



31 16. 

3117- 

31 18. 

3119- 
3120. 
3121. 
3122. 
3123. 
3124. 
3125. 
3126. 
3126a. 



Meetino-s— Casting-vote— President /?-(3 


SEC. 

3126^-. 


tempore. 


3126^ 


Stated and soecial meetings. 


3126c/. 


Officers. 


3126. 


Ordinances, 


3; 26/. 


Penal ordinances— Publication. 




Advertising in daily papers. 


3126/^. 


Party interested may designate paper. 


3127. 
312S. 


Laws repealed. 


Legal advei-tising in large cities. 


3129. 


License notices. 


3130- 


Number of publications. 


3131- 


Expulsion of officers. 


3132. 


City seal. 


3133- 


Streams and ferries. 


3134- 


Contracts. 


3135- 


Salaries. 


3136. 


Control of finances — Powers. 


1% 


:\Larket-houses. 


Market-houses. 


3139- 


Market-houses — Nuisance. 


3140. 


Pipes for heating, etc. 


3141- 


Marine railways— Gas-pipes. 


3142. 


Pipes and mains beyond city limits. 


3143- 


Sellina: real estate." 


3144- 


"S'ote necessary— Deed. 


3'4^- 


Appraisement'. 


3146. 


"Water-works. 


3H7. 


Infirmary for poor. 

City may purchase real estate for sani- 


3HS- 


3H9- 


tiiry purposes. 


3ISO- 


Large cities may borrow money. 


3151- 


Purpose of loan. 


3iSi«- 


Ordinance for loan. 


3iS>^'- 


Interest — Sale of bonds. 


3i5i'^- 


Large cities— Funding-bonds. 


3151'^- 


Limit of debt. 


3152- 


Limit of tax levy. 


3iS2«- 


Orders forbidden. 




Appropriations forbidden. 


3153- 


Funding by small cities. 




Tax — Sinking fund. 


3154- 


Sinking fund comm.issioners. 


3155- 



Election— Oath— Bond. 

Duty of treasurer — Deposit of funds. 

Com'missioner's report and publication. 

Use of funds — Misappropriation, 

Pay of commissioner. 

Removal of commissioner. 

Vacancies. 

Surrender of charter. 

Petition — Proceedings. 

Official acts cease with decree. 

Vested rights not affected. 

Constructing harbor. 

City m.ay do the work. 

Contract. 

Map and profile — Estimate. 

Appropriation of land. 

Condemnation. 

Notice of appraisement. 

Report. 

Possession after tender. 

Appeals. 

Assessments are liens — Foreclosure. 

Harbors — Slips — Docks — Regulating. 

Owners to repair. 

Notice. 

Construction. 

Plan and estimate. 

Return of assessment. 

Assessments, how collected. 

Liability of city — Superintendent, 

Proceedings, 

Sewers — Drains — Cisterns. 

City may construct levees — Procedure. 

Contract — Payment — City orders. 

Jurisdiction of city extended — Plans. 

Clerk's duties — Sale of land. 

Aid to roads, bridges, etc. 

City may purchase stock in bridge 

company. 
Aid to railroads, hydraulic companies, 

etc. 
Jurisdiction beyond limits. 
By-laws— Penalties. 



[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3096. Meetings — -Casting-vote — President pro tempore. 46. 
The mayor and common councilmen of said city shall constitute 
the common council ; and shall meet within ten days after the 
annual election, and at such other times as they shall, by resolu- 
tion, direct. The mayor shall be the presiding officer of the com- 
mon council, and shall have a casting-vote in all cases when a tie, 
but not otherwise. The presiding officer, in the absence of the 
mayor, shall sign all contracts, licenses, permits, and other instru- 
ments as the mayor might do ; and they shall have like effect. 

1. The members of a city council are not personally liable for their official 
acts, unless they act corruptly, 32 Ind. 239; 27 Ind. 485. 

2. The city is not liable for the individual acts of a jnemhcr of the council; 
only the council, unless it is otherwise provided, can act and bind the city, 15 
Gray, 106; 24 N.J. Eq. 143; 35 N.J. L. 404. But notice to a councilman is 
notice to the city, 74 Ind. 378. 

3. The /?///<7^7V<7;z/5 of the territory embraced within the corporate limits, 
and not the officers, constitute the corporation, 100 Ind. 575; 97 Ind. i; but the 
citizens can not confer on the council power not given by law, 47 Mich. 115. 

4. The council can not delegate the power of the city, 38 Ind. 348; 62 Ga. 
645; 65 Mo. 620; 56 111.354; ^*^^ ^^^ ^^^ council delegate its own powers to 
a city officer, nor devolve upon him a duty imposed upon it by the general law, 

7 



§ 3096] CITIES. [98 

52 Ind. p. 416; 63 Ind 155 ; 66 Ind. 396; 34 O. S. 194; 57 Hov,-. Pr. 500 ; 6 N. Y. 
92; 57 N. Y. 591; 54 Md. 499; 43 Mo. 359; 46 Mo. 100; 52 Mo. 133; 77 111. 59; 
36 Cal. 239; 68 Mo. 115; I Dutch (N.J.) 309; 2 Dutch (N.J.) 444; 34 N.J. L. 
163; as to a street commissioner, 2 Swan (Tenn.) 364, see also 73 N. Y. 73; 47 
Wis. 386. But when expressly authorized by an act of the legislature, it may 
delegate its power, 57 N. Y. 591 ; 34 N. J. L. 163. 

4. The mayor is a inemher of the common council, 60 Mich. 600. It is a very 
common practice, in the enacting clause of an ordinance, to recite that it is or- 
dained by the mayor and common council; and the same practice occurs in 
reports of officers required to make reports to the council. Any reference to 
the mayor in such instances is entirely unnecessary, and adds nothing to the 
validity of such ordinances or reports. 

5. The clause authorizing the appointment of a president pj-o tern, would 
seem to authorize him to act as the mayor of the city in the absence (which 
includes his death) of the latter; and unless it does, in case of the death of the 
mayor, a city must do without a head until there can be an appointment by the 
council, § 3050^. Notwithstanding the broad language used in the statute the 
supreme court has held that the presiding officer could not sign a precept, no 
reference, however, being made to this section, 32 Ind. 130. See i Jones (N. C.) 
L. 49. 

6. Special election at first meeting, § 3098. 

7. Any member of the common council has the right to visit any " orphan's 
home" or home for " destitute children" in the county, acts 1889, p. 215, § 9, El. 
Sup. § S87. 

Order of Business for the Regular Sessions of the Common Council. 

A — Opening and referring Sealed Proposals for Public Improvements. 

B — Reports from Committee on Contracts. 

C — Communications, etc., from the Mayor. 

D — Reports from Official Boards in the following order: 

COUXCILMEX. 

I. Hospital Board 



Board of Public Improvements 

Dispensary Board 

Board of Health 

Board of City Commissioners 



-Reports from Standing Committees in the following order: 

COUXCILMEX. 

1. Accounts and Claims 

2. Bridges 

3. Contracts 

4. Education 

5. Finance 

6. Fire Department 

7. Judiciary . 

8. Natural Gas 

9. Markets 

10. Office Fixtures and Supplies 

11. Ordinance * 

12. Printing 

13. Public Charities 

14. Public Health 

15. Public Light . . ■ 

16. Public Property 

17. Railroads . . ." - — — 

18. Rules 

19. Sewers and Drainage • 

20. Streets and Alleys .' 

21. Water 

22. Rental , , 



99] MEETINGS OF COUNCIL. [^ SOQ/ 

G — Reports from Select Committees. 

H — Messages and Papers from the Board of Aldermen. 

I — Appropriation Ordinances. 

J — Introduction of General and Special Ordinances. 

K — Introduction of Miscellaneous Business. 

L — Ordinances on Second Reading. 

M — Ordinances on Third Reading. 

N — Unfinished Business. 

Special orders may be taken up immediately after " Reports from Select 
Committees" if so ordered bv the council. 



Resoiution for Meetings of Common Council. 

Resolved, That meetings of this common council be held on the first and 
third Mondays of each month, at 7.30 p. m., in the council chamber of this city. 

Adjourning Over to Special Meeting. 

Resolved, That this common council adjourn to meet in this chamber on 
Friday, the day of , 18 — , at 7,30 p. m. 

Appointment of Presiding Officer. 

Resolved, That A. B. be and he is hereby elected presiding officer of this 
council vmtil it is otherwise ordered. 

Sec. 3097. Stated and special meeting^s. 47. The common coun- 
cil shall hold stated meetings at least twice in each month ; and 
the mayor or any five councilmen may call special meetings. A 
majority of all members to which the wards are entitled shall be a 
quorum ; and the minutes of every such meeting shall be kept by 
the city clerk, which shall be open to public inspection. 

I. There is no statute requiring the mayor to sign the minutes, 52 Ind. 
411. Clerk's duties, see 3068, and amendment of record, § 3068, note. At a spe- 
cial meeting the council may transact any business it sees fit, and is not lim- 
ited by any restriction inserted in the call, 21 N. Y. 296; 14 O.S. 31; 35 O. S. 
10; 36 La. Ann. 641; 14 Neb. 24; 5 E. L. and Eq. 16; 24 Ind. 514; 28 Ind. 161; 
unless it is business of which notice by publication Avas first required to be 
given, 72 Ind. 218; 5 E. L. and Eq. 16, S, C. 17 L. T. 225. The council, by reso- 
lution, may adjourn from a regular meeting over in special session; but less 
than a quorum can not do so, 22 Minn. 218; 21 N. Y. 296; 11 Vt. 385; 24 N. J. 
L. 718; 5 N. Y. 22; I B. and A. 936; 22 N. Y. 128 ; 5 E. L. and Eq. 16 ; i La. 
Ann. 412; 36L. Ann. 641; 73 Cal. 365. The call should be set out at length 
in the records of the council; but if it is not, the fact of the call may be shown 
by other evidence, 28 Ind. 161. Service of notice may be proved by the ac- 
knowledgment thereof of the covmcilmen upon the face or back of the call, 106 
Ind. 203. The necessity for a special meeting can not be inquired into by the 
courts, 68 Ind. 507 ; 28 Ind. 161; 24 Ind. 514; 95 Ind. 567. The mayor (or five 
councilmen) has not only the power to determine when a special meeting shall 
be called, but what notice shall be given, and how and by whom it shall be 
served. Upon these points his decision is final, and can neither be annulled 
nor set aside by the courts. This is especially true after the council has met 
and transacted business, 95 Ind. 567; 68 Ind. 507. The mayor may serve it, or 
the marshal, or any one else ; and it is not necessary that a return of service be 
made before the time of holding the meeting, 104 Ind. 123. On appeal to the 
circuit court, in any matter appealable thereto, the notice for a special session 
need not appear in the record, 98 Ind. 100. 



§ 3097 J CITIES. [loo 

2. The notice should be a written one, signed by the mayor and attested by 
the city seal. In case five councilmen call a meeting, the seal, of course, must 
be omitted. The service should be personal, but if a councilman can not be 
found, service may be made by leaving a copy of the call at his last and usual 
place of residence. It should be served a reasonable time before the hour of 
meeting; but there is no limit to the length of time it must be served before 
the hour of meeting. If issued and served only a few minutes before the hour 
set for the meeting, it will be sufficient, especially if, by reasonable diligence, 
the members of the council could reach the place of meeting by the time set. 
All the members of the council must be served, or the meeting will be illegal. 
2 Str. 1051, S. C. Co. Temp. Hardw. 147; 4 B. & C.441; 2 Burr. 734; i Str. 
584, S. C. 2 Ld. Raym. 1359; 2 H, L. Cas. 789; but the fact that a councilman is 
not within the limits of the summons, and can not be served, will excuse render- 
ing of service of the notice upon him, and those assembling may lawfully trans- 
act business, 5 Burr. 26S2, 2601; 2 Burr. 731, 733, 735, 2 H. L. Cas. 789. So if a 
member is not served with notice, but is present, the omission to notify him is 
cured, and the meeting will be valid, 52 Mich. 528 (but see 4 Ad. 8z El. 53S); 
if he consents to the council proceeding to the transaction of business, 8 East. 
543; 52 Mich. 528; 36 Minn. 176. So if a/l the councilmen and mayor were to 
meet, in the council chamber at least, and perhaps any place within the city, 
and unanimously proceed to the transaction of business of the city, the meeting 
would be legal, 52 Mich. 528; 36 Minn. 176; 22 Minn. 218; i Dill. Municipal 
Corp. § 264. After consent given and the transaction of business entered upon, 
it can not be withdrawn, i Dill. Municipal Corp. § 264. In some states the 
statute expressly requires the notice to be in writing, or the peculiar phraseology 
used requires it, 36 Minn. 176 ; but there is no reason why, imder our statute, the 
notice may not be a verbal one, especially when it bears such evidence of gen- 
uineness as to leave no doubt in the mind of the councilman of its authenticity. 
The notice may also be by mail; but the difficulty would be to prove that it was 
received; and both that and a verbal notice ought not to be relied upon, 47 N. 
W, Rep. 2S0. 

3. The presumption is, that all special meetings were regularly and duly 
called, 22 jNIinn. 218. 

4. The notice should not only state the day and hour of meeting, but the 
place, if a place diiferent from the usual meeting place is selected. 

5. A quorum consists of at least one member more than the number of 
wards; thus, if there are nine wards, ten councilmen are necessary to constitute 
a quorum, 19 Ind. 344; 20 Ind. 315; 8 Ind.34; ^5 ^^^' 125 ; 48 N. J. L. 395 ; 45 
N.J. L. 251; 47 N.J, L. 208. If a quorum is present, and a majority of those 
present vote in favor of a measure, it is carried, even though such number be 
less than a majority of those elected. Thus, if there are ten councilmen in the 
city, six constitute a quorum; and if six are present and ibur vote in favor of a 
measure, and two against it, such measure is carried, 10 Wend. 658; 45 111. 255; 
45 N.J. L. 251; 16 la. 284. So where three of the six members of the council 
vote in favor of an ordinance, but the remainder, being present, remxain silent, 
the mayor may give the casting vote and the ordinance will be adopted, 121 
Ind. 206, S. C. 41 Alb. L. Jr. 143; 113 111. 137; 37 O.S. 227. The mayor can not 
be counted as a councilman in order to make out a quorum, 113 Ind. 79. If, 
however, a special statute requires a majority of all members elect in order 
to carry the measure, there must be such a majority, and not a majoritj- of 
those present, 5 Cal. 169; see also 21 Cal. 351; 16 Cal. 591; 13 Cal. 540; 20 Ind. 
315. So when there were twelve councilmen, and a majority of all elected was 
required to carry a particular measure; and on balloting there were seven in 
favor and six against the measure, — by mistake or design, there being one ballot 
too man}', — and the council forthwith declared tlie measure carried, it was held 
that such measure, in fact, Avas not carried, 2 La. Ann. 527. Where a measure 
requires a two-thirds vote of all the members, and there is one vote less than 
two-thirds, the mayor can not vote for the measure, and it thus be carried. Such 
a vote is not a tie vote, 114 Ind. 581. 

6. The presumption is, unless the contrary appears from the record, that 
all members Avere present and acted, 22 Minn. 218. 

7. If there is a quorum present at the opening of the meeting, but during 
the session enough members absent themselves from the council chamber, so 



lOl] MEETINGS OF COUNCIL. [§ lQ(^']a 

that in no sense can it be said that they are present, to render those remain- 
ing less than a quorum, business must cease, until enough return to make up a 
quorum, or until the next regular meeting. Those remaining can not adjourn 
over in special session, 22 Minn. 218. In ascertaining the number necessary 
to constitute a quorum, two councilmen for each Avard must be counted, even 
though there is a vacancy in one or more of the wards. 

8. Less than a quorum can not attend to any business, and all acts of 
those attempting to hold a meeting are void, 113 Ind. 79; 114 Ind.581; 22 Minn. 
21S; 10 Wend. 658; 20 Ind. 315; 13 Ind. 58; 16 Cal. 591. 

Notice of Special Meeting. 

To the Members of the Common Cozcncil of the City of . 

Notice is hereby given that a special meeting of said council is hereby 

called, to meet in the council chamber of said city at 7,30 p. m. on the 

dav of , 18 — . 

[City Seal.] A. B., 

Mayor. 

[Any five councilmen may sign the above call, without affixing the seal.] 

Return of Service. 

I, E. F., upon my oath state that I served the annexed notice upon 
C. D., etc., by reading the same to them {or,hj copies thereof left at the last and 
usual place of residence of each of them]. 

E. F. 

Subscribed and sworn to before me this day of , iS — . 

A. B., 
[City Seal.] Mayor. . 

[1881 S., p. 174. Approved April 14, 1881, and in force September 19, 18S1.] 

Sec. 3097^. Breaking quorum in common council. 153. When- 
ever it shall happen that a quorum shall not be present or voting 
in the common council of any city of the State of Indiana, at any 
stated or special meeting thereof, by reason of the willful or in- 
tentional absence of any member or members of the same, or of 
his or their refusing to vote, or to answer to their names on any 
vote or roll-call, any member of such common council so refusing 
to vote or to be present or to answer to his name, with the intent 
to defeat, delay, or obstruct legislation or legislative action or the 
business of such common council, shall be deemed guilty of a 
misdemeanor, and, upon conviction thereof, shall be fined not more 
than one thousand dollars nor less than one hundred dollars, [R. S. 
1881, §2059-] 

' Indictment. 

[ Title and Captio7t.] That A. B., on, etc., at, etc., being then and there 
a duly elected, qualified, and acting member of the common council of the city 

of , a city situated within said county and incorporated under the general 

law for the incorporation of cities, did then and there unlawfully, willfully, and 
intentially refuse to vote at a regular meeting of said council then and rhere 
held, at which said A. B. was then and there present, although duly called on 



§§ 3098, 3099] CITIES. [102 

so to do, upon a certain ordinance then and there introduced providing for the 
\he7-e describe tlie character of the ordina7ice^ resohition, or motion]\ there not 
being then and there a majority of said council voting for or against said ordi- 
nance, owing to the failure of said A. B. to vote as aforesaid; and the said A.B. 
so failed to vote as aforesaid with intent then and there to defeat legislative action 
by said council, and particularly upon the ordinance aforesaid, contrary, etc. 
Gillett's Indiana Criminal Law, § 350. 

[1S67, p. 33. Approved and in force March 14, 1867.] 

Sec. 3098. Oficers. 48. At every such first annual meeting, 
the common council shall appoint, by ballot, a chief engineer of 
the fire department, three commissioners to form a board of 
health, and, in their discretion, a sealer of weights and measures, 
and as many supervisors of streets, to act under the direction of 
the street commissioner, as they may deem necessary, and all 
other officers which the by-laws may create or require, unless, for a 
good cause, deemed inexpedient at that time. And the common 
council may, by ordinance, prescribe such rules and regulations, 
in addition to those herein contained, for the qualification and 
official conduct of all city officers, as they may deem for the pub- 
lic good, and which shall not be inconsistent with the provisions 
of this act. And the common council may authorize any city 
officer, except the mayor or city judge, to appoint, with the con- 
currence of the common council, one or more deputies. 

1. For appointment oi deputies^ see § 3043, note and. form. This section is 
broader in conferring the power of appointing deputies than § 3043. 

2. In addition to the officers named in this section, the council elect every 
two years a city attorney, civil engineer, and street commissioner, § 3043. The 
officers elected by the common council are city officers, 100 Ind. 15, 19. The 
supervisors must act under the direction of the street commissioner; and his 
duties can not be devolved on them by the council, 59 Ind. 364. 

3. If the appointment is not made at the first annual meeting, it may be 
done at any subsequent meeting, 22 Minn. 218. 

4. Until the council has established a board of health (§ 3106, cl. 35) com- 
missioners for a board of health can not be elected. In case no such board is 
created, the mayor and council, ex officio^ act as a board of health, § 4993, under 
the supervision of the state board. 

5. If there is a tie vote under this section, it is usually claimed that the 
mayor can not give a casting-vote; but there is no reason why he may not then 
give a casting-vote by ballot. 

Entry of Election. 

On motion of A. B. the council proceeded to the election by ballot of 
officers for the ensuing year. For the office of chief engineer of the lire depart- 
ment, C. D. received five and E. F. three ballots; and thereupon C. D. was 
declared duly elected to said office of chief engineer for the ensuing year, etc. , 

Sec. 3099. Ordinances. 78. All by-lavv^s and ordinances shall, 
within a reasonable time after their passage, be recorded in a book 
kept for that purpose, and shall be signed by the presiding officer 
of the city, and attested by the clerk. On the passage or adoption 
of any by-law, ordinance, or resolution, the yeas and nays shall be 
taken, and entered on the record. 



105] ORDINANCES. [§3IOO 

1. For proof of ordinance, see § 3066, note. The signature of the mayor is 
not essential to the validity of an ordinance, 53 Ind. 411. Posting printed copies 
in the ordinance book is suiBcient, 36 111. 177. 

2. The words "ordinance" and "by-law" are sjmonjmous, 117 Ind., p. 225. 
Ordinances may be recorded at any time after their passage, 31 Pa. St. 515; 24 
How. 364; 72^10.380. There is nothing requiring that they be set out at length 
in the council's records; a mere reference to them by title or description is suf- 
ficient. 

3. The "yeas" and "nays" need not be entered in the ordiruance book, but 
must be entered, on the passage of the ordinance, in the records of the council. 
If not so entered, the council may order the entry of the result to be made mc7ic 
pro tu?zc^']'j Ind. 542; 64 Ind. 319; it can not be shown by parol, 64 Ind. 319. In an 
action against the city, for damages caused by negligently constructing a sewer, 
it is not necessary for the plaintiff to show that the ordinance under which the 
city acted was regularly adopted. It is enough to show that the city assumed 
to adopt it, and under it constructed the sewer, 107 Ind. 75. So in a suit on a 
contract with a city it is not necessary to show the contract was duly entered 
of record, 116 Ind. 15. In an action against a city, based upon an ordinance, no 
afRrmative averment as to the particular manner of its adoption is necessary, 
the presumption being in favor of the regularity of the proceedings by which the 
resolution was adopted, 107 Ind. p. 236. On nunc ;pro tunc entries, see § 3068, 
note. 

[1889, p. 342. Approved March 9, 1S89. In force May 10, 1S89.] 

Sec. 3100. Penal ordinances — Publication. 57. Every by-law 
imposing a penalty or forfeiture for the violation thereof, shall, 
before the same shall take effect, be published two weeks con- 
secutively in some .newspaper printed in the city : Provided, That 
in case of insurrection, riot, pestilence, conflagration, or other im- 
pending danger, requiring the immediate operation of such ordi- 
nance, it shall take effect as soon as proclamation is made thereof by 
such common council and posted at five public places in each of the 
wards of such city : Provided, further, [That] the common council 
shall have discretionary power to direct the publication of any 
ordinance in a daily newspaper; and the publication thereof for 
one day each in any two consecutive weeks in any daily paper 
shall be deemed sufficient to allow the same to take effect: Pro- 
vided, That when no paper is published in such city, printed or 
written copies of such ordinance shall be posted up by the city 
marshal, in at least five public places in each ward of such city for 
two weeks, before the taking effect thereof Provided, fiirtJier, 
That whenever any city shall publish any of its ordinances in book 
or pamphlet form, such publication shall be of itself a sufficient 
publication, and such ordinance or ordinances shall take effect tw^o 
weeks from the date of publication, appearing upon the said book 
or pamphlet. Any such publication in book or pamphlet form, 
if the same shall purport to be printed under the authority of the 
common council of such city, shall be presumptive evidence in all 
courts and places of the ordinances therein contained, and of the 
date of adoption, and that the same are properly signed, attested, 
and' recorded. [El. Sup. § 695.] 

I. See § 3232CZ. ' On proof of publication, see § 3064, 7!otr 3. The publica- 
tion must be in the English language, 26 O. S. 49; 50 Mo. 22. An ordinance 



§3I00] CITIES. [104 

not imposing a penalty or forfeiture need not be published; in other words, no 
ordinance need be published unless a penal action, and such as an action can 
be maintained upon it for a violation of its provisions, 121 Ind. 331; 6 Ala. 88. 
The publication may be at any time after its passage; but the manner of publi- 
cation must be directed by the council; and if not so directed, a publication 
made by the clerk vinder the first clause of this section would not be valid, 10 
Conn. 435,567. The mode of publication provided by statute must be observed, 
38 N. J. L. no, 113; 3 Dutch (X. J.) 265. Only two' insertions in a weekly or 
daily paper are required, if an insertion is made in each of the two weeks, 56 
Ind."^ 253. If so defective as to require a supplemental ordinance to cure the 
defect, this last ordinance must also be published, 117 Ind. 221. The publication 
can not be in a Sunday newspaper, 87 Ind. 58. The ordinance goes into effect 
two weeks after the first publication, and not on the day of the last publication, 
56 Ind. 253; or at anv time thereafter as provided for in the ordinance. 95 Ind. 
70. A provision in an ordinance that it shall be in force from and after its 
passage and publication, will put it in force after its statutory publication, 95 
Ind. 70. Errors or slight variations from the original does not vitiate the pub- 
lication, 88 111. 109; 87 111. 389; nor does a greater number of publications than 
is required by statute invalidate the ordinance, 2 C. S. C. R. 84. 

2o The constitutional provision with respect to the sufficiency of the title 
of a statute does not apply to a city ordinance. The title of aji ordinance may 
be anything the council sees fit to make it, even though it is totally foreign to the 
contents of the ordinance, 25 Ind. 490; 100 Ind. 575. In fact, there is no statute 
requiring atitle to be affixed to an ordinance ; butif it is, the title will be considered 
a constituent part of the ordinance and will be used in order to uphold it, 52 
Ind. 411. 

3. The covmcil can not pass an ordinance for the punishment of an act per- 
formed outside the city limits, 38 Ind. 49; except in a few specified instances. 
See § 3106, els. 4, 11; 6 3155; 109 Ind. 466. 

4. The power to pass an ordinance or by-law implies the power to repeal 
or modify it, unless the power is restricted in the law conferring the right, or 
unless such change or repeal would aft'ect a vested right under a regulation law- 
fully adopted, 103 Ind. 252; 69 Mo. 26; 12 East. 22; 6 How. (U.S.) 511; 6 
Wheat. 591; 3 Mich. 342. It continues in force until repealed or annulled by 
the council or legislature, 43 Ind. 480; 7 O. S. 3^<5; 45 Ala. 310 (constitutional 
provision); 105 U. S. 278; in U. S. 716; 35 N. J. L. 419; in N. Y. i; 37 Me. 
52. The repeal of an ordinance puts an end to all prosecutions under it, unless 
there be a saving clause attached, 56 111. 285; 68 Mo. 588: 79 Ala. 495; 4 Mo. 
App. 357- 

5. The absence of an ordaining or enacting clause is not fatal to an ordi- 
nance, 52 Mo. 424; 112 111. 121; 57 Mich. 396. 

6= wAU ordinances must be j'easo?iable, and not in conflict with the statutes or 
constitution of the State or with the laws of the United States, 107 Ind. 502; 58 
111. 102, S. C. II Am. R. 52; 145 Mass. 384; 66 la. 249; 7 Lea (Tenn.) 134; 140 
Mass. 485; 32 Minn. 364; 63 Mich, 396; 44 Hun. 166; 49 N.J. L. 391; 47 N.J. 
L. 286;' 85 Ind. 276; 100 Ind. 57;; 87 111. 303; 79 111. 567; 68 Mo. 541; 112 U. S' 
69; 118 U. S. 356; 26 Fed. Rep. 611; 12 Pa. St. 318; 29 N.J. L. 77. They must 
not be oppressive in their character, 8 Humph. (Tenn.) 707; 53 Mo. 582; nor 
unreasonable and partial in restraint of trade, 52 Cal. 606; 49 Md. 217. They 
must be impartial and fair^ 107 Ind. 502; 45 N. J. L. 246; 12 N. Y. Leg. Obs. 
38; 7 Paige, 261; 36 La. Ann. 247; 60 Cal. 78; 114 Ind. 332; 78 111. 405; 96 U. S. 
521; 3 La. Ann. 688; 3 Allen, 545. Bur if general in its application, the mere 
fact that it is peculiarly applicable to a particular person, does not render it 
void, 83 Ky. 420; but it can not select out particular individuals by name and 
impose burdens on them, 2 Swan (Tenn.) 364; 78 111. 405. They must not con- 
travene common rights, q Conn. 391; 8 Conn. 247; 5 Day (Conn.) 22: 30 Wis. 
316; 29 Wis. 307, S. C. 9^ Am. R. 576; 54 Tex. 388; 61 Md. 297; 2 Gr. (N.J.) 
222. The validity of an ordinance is for the court and not for the jury to de- 
termine, 100 Pa. St. 368; 3 Pick. 462; 52 Cal. 606; 57 N. Y. 591: i Met. 130; 44 
Mo. 547; 5 Cush. 438 {contra, 30 Wis. 316). But if the legislctnve authorizes 
the council to pass an imreasonable ordijiance, the courts can not hold it in- 
valid, 29 111. 317; 12 Minn. 41; 112 Ind. 15; 44 N. J. L. 350; 54 Mo. 17, 36. They 



( 



105] LEGAL ADVERTISING. [§ 3 IOO« 

must not i}>fr{7ige the sfii'it of or be repugnant to the policy of the State as 
declared in its general legislation, 3 O. 427; 33 Fed. Rep. 659; 1^4 Md. 499; 60 
Cal. 78; 18 O. 523; 9 O. S. 439; II O. S.688; 12 Wall. 349; 4 Hill, 209; 34 N.J. 
L. 172.^ 

7. l\v<i penalty mav be fixed on a sliding scale, if fixed Avithin reasonable 
limits, 117 Ind. 221 ; 27 Ala. 55 ; 7 Jones (N. C.) L. 281; 24 U. C. Q^ B. 238; 
34 Minn, i There may be one penalty for the first offense^ a larger for the sec- 
ond, and a still larger for the third. 3 B. & P, 434; but an ordinance can not 
multiply one offense into many, and punish each one. Rice (S. C.) 158. It can 
not exceed in amotmt the sum of one hundred dollars, § 3155. 

8. Courts give ordinances a reasonable construction, 2ir\6. are inclined to xip- 
hoid, rather than io over throw, Wx^tcv. 52 Ind. 411; 2 Md.449; 26 Conn. 406. The 
same rules of construction apply to ordinances as do to statutes, 68 Cal. 294; 
but the strict rules of construction applied to penal statutes do not ?ipply to 
penal ordinances, 4 La. Ann. 335; 14 La. Ann. 318; 2 La. 427; 55 Tex. 76 ; yet, 
if highly penal in its nature, it will be construed strictly, and it must clearly 
embrace the offense charged, i B. Mon. (Ky.) 261; see 79 Mo. 210. Their x'a- 
lidity may be tested by plea or answer in an action to enforce them, or to re- 
cover the penalty, 5 Cush. 438; 2 R. I. 154. They may be void in part and 
valid in part, the same as a statute, 16 Pick. 121; 8 T. R. 356 ; 2 Cush. 562 ; 45 
N. J. L. 288 ; 39 L. Ann. 247 ; 10 Met. 382 ; 45 N. J. L. 318; 35 O. S. 507 ; 33 
Minn. 69 ; 34 Minn. i. 

Enacting Clause of an Ordinance. 

Sec. i. Be it Ordained by the City of .- That, etc. 

Enforcement and Publication Clause. 

Sec. — . This ordinance shall be in force from and after its passage, and 
publication for two weeks consecutively in the Weekly Argus of said city, [or, 
and publication for two consecutive weeks in the Daily Argus of said city,] the 

first of which shall be on the day of -, 18 — , and the last on the 

day of , 18 — , {the second publication should be Ofie week fro?n the 

first,)] [or, and publication for two Aveeks by printed or written copies thereof 
"posted up by the city marshal in five public places in each ward of said city.] 

Emergency Clause. 

Sec. — , Whereas, a conflagration is now prevailing in this city requiring 
the immediate operation of this ordinance, the same shall take effect as soon as 
proclamation is made thereof, by the marshal, under the order of this council, 
bv reading the same at the city-hall door, and posting copies thereof in five 
public places in each of the wards of this city. 

[1883, p. 50. Approved and in force March i, 1883.] 

Sec. 31O0<2. Advertising in daily papers, i. In any county in 
this State containing a city with a voting population of 16,000 and 
over, as shown by the poll of the last general election, and having 
published therein three or more daily newspapers of general cir- 
culation therein, all advertising required by law growing out of the 
duty of any city, county, or township officer, executor, adminis- 
trator, guardian, trustee, assignee, or any unofficial person or per- 
sons, or a corporation, in a suit by such corporation, shall be done 
in some one of the daily newspapers of said city, of general cir- 
culation in said city and county. [El. Sup. § 2.] 



§§ 3100^ — 3I0l] CITIES. [io6 

Sec. 3100^. Party interested may desig^nate paper. 2. In all 

advertising contemplated by the provisions of the preceding sec- 
tion, the plaintiff or party ordering the advertising, shall have the 
right to designate the paper in which said advertising shall be done, 
excepting as to the printing of the delinquent list. [El. Sup. § 3.] 
Sec. 3100r. Laws repealed. 3. 'All laws, or parts of laws, in 
conflict with the provisions of this act, are hereby repealed. [El. 
Sup. § 4.] 

See §§ 3232, 3232^, and 31001^. This act was repealed, acts 18S3, p. 77, El, 
Sup. §§ 6 and 7, and then revived, acts 1883, p. 134. El. Sup. §§ 8 and 9. 

[18S9, p. 431. Became a law without governor's signature, March 11, 1889.] 

Sec. 3100^. Legal advertising in large cities, i. In all cities 
containing a population of 16,000 or more inhabitants, as shown 
by the last preceding census, all legal advertising required by law, 
pertaining to affairs connected with the city government, shall be 
made in a daily newspaper of general circulation in such city, if 
one be published in said city. [El. Sup. § 10.] 

Sec. 3100^. License notices. 2. All notices of application for 
license to retail spirituous, vinous, or malt liquors, and all notices 
of the sale of real estate for delinquent taxes, or by any sheriff, 
administrator, executor, or commissioner, when the applicant for 
such license resides in or the real estate to be sold is situated in 
said city of 10,000 or more inhabitants, as shown by the last pre- 
ceding census, shall be made in a daily newspaper of general cir- 
culation in such city if one be published in such city. [El. Sup. 
§ II-] 

Sec. 3100/ Number of publications. 3. It shall be sufficient to 
make such publication one time each week on a given day, for the 
number of weeks now required by law, but the fees for such pub- 
lications in a daily newspaper shall in no case exceed the fees al- 
lowed by law, if such publications had been made in a weekly 
newspaper. [El. Sup. § 12.] 

See §§ 3100 to 3100C. 

[18S1 S., p. 240. Approved April 7, 1881. In force September 19, 1881.] 

Sec. 3100^. Publication, how made. 60. Publications of legal 
and other official matters printed in the English language shall be 
lawful if published in any newspaper of general circulation pub- 
lished in the county. [R. S. 1 88 1, § 1279.] 

See § 3232. 

[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3101. Expulsion of officers. 88. Any member of the common 
council may be expelled or removed from office by a two-thirds 
vote of the whole number elected ; but not a second time for the 
same offense. Any officer of such municipal corporation, whether 
elected or appointed, may be removed by a like vote. The com- 



10/] EXPULSION OF OFFICERS. [§3I0I 

mon council shall make provision in their by-laws or ordinances as 
to the mode in which charges shall be preferred and the hearing 
of the same had. 

1. If charges are preferred against the city attorney, civil engineer, or street 
commissioner, a two-thirds vote is essential to his removal, 32 Ind. 74; but with- 
out charges preferred, the council may, at its pleasure, remove him by a ma- 
jority vote. § 3043; 32 Ind. 74. All other city officers, whether elected by the 
council or by the people (19 Ind. 481), can be removed only upon charges pre- 
ferred and by a two-thirds vote, 32 Ind. 74. By a majority vote the council 
may dispense with the services of the street commissioner, and require the 
marshal to perform the duties of such commissioner, 32 Ind. 79. While the 
street commissioner, or any other officer, remains in office, the council can not 
devolve his duties on another, 59 Ind. 364; nor create a fire-board and confer 
upon it the duties of the chief of the fire department, to the exclusion of the 
latter, 100 Ind. 15. The council may investigate trustees of the city water- 
works (^ 327S), prefer charges against and remove them, 119 Ind. 481. 

2. Courts will not restraiji the common council from proceeding to hear and 
investigate charges preferred against a city officer, and from removing him; 
ii9lnd.4Si; but if it illegally remove him, maiidamus will lie to compel his 
restoration, 32 Ind. 74; 119 Ind. 481 ; 9 Wis. 254. The declaration of a vacancy 
in the office when none in fact exists, can not be construed as an expulsion or 
removal, 88 Ind. p. 328; i Dutch (N.J.) 536; 20 Wis. 72. Power to remove has 
been held to give the power to suspend an officer for a certain or uncertain 
length of time, 26 Mo. 496; 54 N. H. 183; 64 Mo. 493; 20 Mich. 176; but see 59 
Ind. 364. 

3. Before removal for cause, the officer is entitled to personal notice of the 
proceedings against him, and where the trial will be held, 10 H. L. Cas. 404; 7 
O. pt. 2, 414; 5 Ind. 165; 79 N. Y. 582; 106 N. Y. 64; 90 Mo. 19; 24 How. Pr. 
216; but notice is dispensed with by an appearance, 2 S. & R. 141 ; i Manl. & Sel. 
697; 2 Ld. Raym. 1240; by a total desertion of the place, i B. & Ad. 936; 11 
Mod. 75, S. C. 2 Ld. Raym. 1275, unless he returns and is in his place at the 
time of the proceedings, 4 Burr. 2089. There must be a charge or charges 
specifically stated, not, however, with technicalty, i Bush. 176. He is entitled 
to reasonable time to ans-jjer, to prodttce testimony^ to cross-examine tvitnesses, 
and to be heard by counsel^ 7 O. pt. 2, p. 414; i Burr. 540; 2 Burr. 734; 12 Pick. 
244. Unless admitted the charge must Idc proved, and mere silence is not an 
admission, 8 T. R. 356; 12 Pick. 244; i East. 562. While mandamns^ as we have 
seen, will lie to restore an officer illegally removed (32 Ind. 74), or where the 
charge is not sufficient to authorize the removal, 2 Ld. Raym. 1240; 15 Pa. St. 
241, yet if all the proceedings are regular, courts will not inquire into them 
collaterally, nor examine the merits of the controversy, 52 Pa. St. 125; 35 Barb. 
254 (but see 21 Fla. 652). 

4. The effect of the removal is that the office becomes vacant from the time 
of the amotion, and thereafter, if he continues in office, he is a usurper, i Vent. 
302; 2 Ld. Raym. 1566, S. C. i Barn. 265. * 

5. The members of the council causing the removal are not personally liable, 
unless actuated by malice and want of probable cause, i East. 555, S. C. 3 Esp. 
278; CI. & Fin. 289; 17 Ind. 169. 

6. Where the removal is without charges, no notice of the intention to }3- 
move is necessary; the removal may be summarily performed. But he is en- 
titled to actual notice of his removal, and to compensation until he receives 
such notice, 2 N. Y. Leg. Obs. 396. Notice in a newspaper is not enough. Id. 

7. Before any action can be taken for the removal of an officer under this 
section the council must pass a general ordinance providing for the trial of 
officers, 18 Bull. 340; 19 Bull, 175. 

Removal Without Charges Preferred. 

A. B, is hereby removed from the office of city civil engineer; and the city 
clerk is directed to notifv him of such removal. 



§ 3102] CITIES. [l08 

Notice of Removal. 

To A. B.: 

You are hereby notified that at a regular meeting of the common 

council of the city of , State of Indiana, held at the council chamber, 

on the day of , iS — , you were removed, without charges pre- 
ferred against vou, bv said council, from the office of civil engineer of said 
city. ' ' C. D., 

City Clerk. 

Ordinance for the Trial and Removal of City Officers. 

Sec. I, Be it ordaiiied by the Common Council of the City of .• That 

any member of this council or any voter of said city may prefer charges against 
any officer thereof. The charges shall be in -writing, and be filed with the clerk, 
who shall lay them before the council at its next meeting. If preferred by a 
member of this council, they shall be signed by him, but if preferred by any one 
else, they need not be signed. 

Sec. 2.^ Such charges shall be referred to a committee of three members 
of the council, Avho shall examine into the same; and they shall report in writ- 
ing at the next meeting of the council (unless further time be given by the 
council) if, in their opinion, there be good grounds for the accusations con- 
tained therein. 

Sec. 3. If said committee report that there are good grounds for such accu- 
sations, the council shall at once refer such charges to the city attorney, who 
shall redraft and present in due form, numbering each specific charge, the 
same forthwith to the council, or at the next meeting thereof, at the option of 
the council; and the same shall be marked "filed" by the clerk. But if such 
committee report that there are no good grounds for such accusations, then no 
further steps shall be taken, unless the council refuse to accept such report and 
refer such charges to the city attorney for presentation in due form, as aforesaid. 

Sec. 4. When such formal charges shall have been filed with the city clerk 
by the city attorney, the mayor shall issue a summons to the city marshal, 
requiring the accused to appear before said council, at a certain hour named, 
to answer such accusations, on a day therein named, not less than five nor more 
than ten days from the date of issuing the same; which summons said marshal 
shall serve upon the accused by reading the same to him. or by leaving a copy 
thereof at his last and usual place of residence. 

Sec. 5. At the hour set for trial, the council, if not in regular session, shall 
be called together in special session, either by the mayor or five councilmen 
thereof, as a trial court. Evidence shall be taken in such cause, the attendance 
of witnesses enforced by subpoena or attachment; and all proceedings generally 
shall be the same as in actions or suits at law. The accused shall be required 
to answer such charges, and shall have the right to call witnesses, produce 
evidence, and be heard either in person or by counsel. 

Sec. 6. At the conclusion of the evidence and argument, a vote viva voce 
shall be taken on each separate charge; and if two-thirds of the whole number 
of the councilmen elected shall determine that the accused is guilty of any one 
of such charges, he shall be deemed removed from his office. Sentence of 
removal shall at once be pronounced by the presiding officer of the council. 

7. When a charge is preferred against a member of the council, he shall 
have no vote in any of the proceedings instituted against him. If the mayor 
shall be such accused person the council shall appoint one of its own members 
president pro tern., to serve as such until such charge be determined; but such 
appointment shall not have the eftect to deprive said mayor of the right to per- 
form the duties of his office, except to preside over the council during his trial. 

Sec. 8. During the trial the council may adjourn from day to day, or from 
one day over to any other, until the same" is completed. 

Sec. 9. This ordinance shall be in force from and after its passage. 

Sec. 3102. City seal. 49. Each common council shall cause to 
be provided a corporate seal, around the margin of which shall be 



log] STREAMS AND FERRIES. [§3103 

the name of such city and the Vv'ord "Indiana," and in the center 
thereof, such device as the common council may direct ; and such 
seal shall be affixed to all instruments or writings needing authen- 
tication. 

1. The seal is kept by the mayor, § 3062, subject to the clerk's right of ac- 
cess thereto, § 306S. When acting as a justice of the peace the mayor does not 
use the seal, 64 Ind. 226. 

2. The corporate seal attached to an instrument, attested by the signature 
of the proper officer, is J>rtma facie eyidence that it was lawfully placed there, 
7 Humph. (Tenn.) 553 ; 9 Heisk. (Tenn.) 51S. A newly-elected mayor, on 
entering into his office, may maintain mandamus against his predecessor to 
compel him to deliyer oyer to him the seal of the city. 7 Cush. 226; 19 N. 
H. 215; or he may maintain repleyin, 21 Pick. 148 ; 44 Me. 374 {coiitra^ 24 Mich. 
466), if there be no contest oyer the right to the office, 17 la. 525. 

Sec. 3103. Streams and ferries. 50. The common council shall 
have exclusive power to keep open streams, and preserve, and, if 
necessary and expedient, change the course of rivers passing through 
or bordering upon the corporate limits of such city; to prevent en- 
croachments or injury to the banks thereof, or the casting into the 
sam.e of offal, dead animals, logs, or rubbish; and, within the cor- 
porate limits of such city, to establish and regulate ferries across 
such stream.s and rivers ; to license any person or persons or cor- 
poration to keep such ferry or ferries, and exact a reasonable fee 
for such license ; to designate the kind of boats to be used at such 
ferries, and the times and places of landing ; and to prescribe the 
rates of ferriage to be charged at such ferry or ferries. And 
whenever the bank of such stream or river shall be a public high- 
way or public wharf or commons within the limits of such city, 
the common council of such city shall have full and exclusive 
power to authorize the use of any part or parts of such bank as a 
landing-place for such ferry or ferries: Provided, however. That no 
new ferry or ferries shall be thus established within one mile below 
or above an established ferry, unless the common council of said 
city shall determine, by the votes of two-thirds of the members of 
such common council, that public convenience requires the estab- 
lishment of such new ferry or ferries: And provided, fui'ther. That 
if any person be aggrieved by the establishment of such new ferry 
or ferries, or by the action of the common council in fixing the 
rates of ferriage, he shall have the right to appeal to the circuit 
court of the proper county, upon filing bond in the city clerk's 
office, within thirty days thereafter,' payable to ' such city, with 
security to be approved by such clerk, and conditioned for th.e due 
prosecution of such appeal, and the payment of all costs if judg- 
ment be rendered against such appellant ; and the city clerk shall 
cause such bond, with a certified copy of the proceedings of said 
common council, and all of the original papers of the cause, to be 
filed in the office of the clerk of such circuit court within twenty 
days thereafter, and such cause shall be docketed for the ensuing 
term of such court, and further proceedings had and judgment 
rendered therein as in other cases of appeal. 



§§3io4, 3105] CITIES. [no 

1. So far as procedure with respect to streams^ this section is modified bv 
§ 3166 and the following sections. 

2. A mere power "to regulate ferries" does not confer authority on the 
council to exact a license and prohibit the running of a ferry unless a license is 
first obtained, 25 Ind. 283; 26 Ind. 193. Since these decisions the statute has 
been changed. 

3. The board of coimty commissioners is exclusively authorized by statute 
(R. S. 1881, §§4881 to 4S88) to regulate the hours during which a licensed 
ferrjmien is required to keep his ferry open and run his boats, and a city ordi- 
nance providing inconsistent regulations is not enforcible; but regulations of 
the city that are reasonable and not so inconsistent may be adopted, and applied 
even to ferries plying between this and another State. License fees may be 
exacted of such ferrymen under penalty if they live v/ithin the State, 118 Ind, 
337. A ferry right may be lost by a non-user, 35 Ind. 19. For proceedings to 
appropriate, see 38 Ind. 223. 

Sec. 3104. Contracts. 52. No member of the common council 
or other officer of such city shall, either directly or indirectly, be 
a party to or in any manner interested in any contract or agree- 
ment with such city for any matter, cause, or thing by which any 
liability or indebtedness is in any way or manner created against 
such city; and if any contract should be made in contravention of 
the foregoing provisions, the same shall be null and void. No offi- 
cer of such city shall purchase any bond, order, claim, or demand 
whatever against such city, during his continuance in office for any 
sum less than the amount specified therein ; and any bond, order, 
claim, or demand purchased by any officer of such city, in contra- 
vention of the foregoing provision, shall be forfeited to such city, 
and no action shall ever be maintained thereon. 

1. This section does not disqualify a councilman so he can not vote on a 
petition to issue bonds in aid of a railroad company because of his being a stock- 
holder and officer of such company, 57 Ind. 152. Nor does it apply to Avhere a 
holder of the city's bonds agrees with it that they shall be assigned and trans- 
ferred for less than their face value to a trustee who is a member of the council, 
even though such trustee contributes voluntarily to a fund for the payment of 
such bondholde^r a sum equal to his proportion of the taxes necessary to pay off 
such debt, 59 Ind. 400. This section does not apply to a town, 77 Ind. 307. 

2. But this section does apply to a marshal having a contract with the 
city to bury dead animals, 69 Ind. 244 ; or to a member of the board of health 
having a contract with the city to vaccinate the school children of the city, 
75 Ind. 156; or to a contract by the city with the city judge for the use of 
his office as a city court-room, 79 Ind. 166. It is a crime for a city officer to 
be interested in a city contract, § 3226(7. 

Sec. 3105. Salaries. 51. The common council shall, within one 
month after the annual election in each year, fix the salaries of all 
the officers ,of such city provided for in this act, and by ordinance 
provide for the payment of the same; which salaries shall be paid 
on the first days of January, April, July, and October in each year, 
and, when so fixed, shall not be increased during that year: Pro- 
vided, That no member of the common council shall be allowed 
a greater, sum than one hundred and fifty dollars in any one year 
for all services rendered by him as such member. 

The city council has full power over the salary of all city officers, either to 
increase or lessen them, 69 Ind. 244. For salary of aldermen and councilmen in 



Ill] 



GENERAL POWERS OF COUNCIL. 



[§3106 



large cities, see § 3059. A resolution fixing the salary of an officer must be enacted 
by taking the yeas and nays ; and if no entry of that fact is made, it can not be 
proved by parol; but an entry nunc fro tunc may be made of that fact, and the 
employment then shown by the record, 64 Ind. 319; see § 3078, note. In an ac- 
tion by an officer against the city to recover for his service, a copy of the or- 
dinance must be set out as an exhibit, 69 Ind. 244. The salary mustbe accurately 
determined and fixed on a certain basis by the council. In case of the treasurer, 
it may be a percentage on the taxes levied, but it can not be on the taxes col- 
lected during the year, 74 Ind. 133. See § 3094, note. If the salaries are not 
fixed within the time limited by this section, no doubt thej may be at any time 
thereafter, 2.2 Minn. 218. 

Salary Ordinance. 



Sec. I. Be it ordained by the Common Cotincil of the City of .• That 

the salaries of the city officers for the year beginning on the day of 

, iS — , and ending on the day of , 18 — , shall be as follows, 

to wit: 

Mayor, $ 

because of 
Citv clerk, 
Etc. 

Sec. 2. This ordinance shall be in force from and after its passage. 



. and all fees received by him in actions brought before 
a violation of penal ordinances of the citv. 



him 



Appropriation Ordinance No. 



18- 



AN ORDINANCE APPROPRIATING MONEY FOR THE PAYMENT OF SUNDRY 
CLAIMS AGAINST THE CITY OF , ON ACCOUNT OF . 



Sec. I. Be it ordained by the Common Council of the City of 



That 



the following named persons be allowed the am.ounts set opposite their respect- 
ive names, from any moneys in the city treasury not otherwise appropriated, 
as follows: 



Name. 


Nature of Claim. 


Dollars. Cts. 












































[1873, p. 50. Approved and in force March 10, 1873.] 

Sec. 3106. Control of finances — Powers. 53. They shall have the 
management and control of the finances of the city, and of all prop- 
erty, real and personal, belonging thereto; and shall have the ad- 
ditional powers herein permitted, and may make and publish by- 
laws and ordinances necessary to enforce the same. The common 
council shall have the power to enforce ordinances — 

See general welfare clause, § 3155, and notes. 



§3I06] CITIES. [lI2 

1. Extent of jurisdiction, The legislature has the absolute power to desig- 
nate the limits over which the jurisdiction of municipal corporations shall ex- 
tend, and its judgment upon that question is conclusive, 109 Ind. 466. But a 
city or town can not own school property outside of its limits, 56 Ind. 521;- nor 
impose a penalty for visiting houses of ill-fame situated without the city, 38 
Ind. 49; nor prohibit cemeteries outside a city, 28 Ind. 79 (see 13 Ind. 134). 
It may, however, restrict the sale of liquor outside of its limJts, and within 
two miles thereof, 118 Ind. 279; 109 Ind. 466. 

2. Change or repeal of lavj. The law under which a city is formed may be 
changed or repealed ^t the will of the legislature, 16 How. (U. S.) 369 ; the polit- 
ical power conferred by the legislature can not become a vested right, i3Wend. 
325; 16 Me. 224 ; 34 Me. 411, 45 Main 133 , 7 Wall, i; 17 Wall. 322; 64 Pa. St. 
169; 116 U. S. 289; 34 N. H. 266; 20 N.J. Eq. 360; 109 Ind. 466; 62 Tex. 728; 
8 B. 361; 4 B. 208. "It is one of its [the State's] creatures, made for a spe- 
cific purpose, to exercise M-ithin a limited sphere the powers of the State. The 
State may withdraw these local powers of government at pleasure, and may, 
through its legislature or other appointed channels, govern the local territory 
as 'it governs the State at large. It may enlarge or contract its powers or de- 
stroy its existence," 17 Wall. 322; 28 Mich. 228, S. C. 14 Am. R. 202, 63 111. 66; 
R. M. Charlt. (Ga.) 250; 34 Mo. 546 ; 15 Pa. St. 44 ; 9 Bush. 189 ; 3 Oreg. 525 ; 
26 Wis. 432; 4 0.427; 18 Cal. 590, 31 N.Y. 164; 44 Ind. 524. But the legisla- 
ture can not deprive the city of local self-government, iiS Ind. 382, 426. On 
dissolution of a municipality, see § 3319. 

3. Limit of foxvers. A municipal corporation can only exercise such pow- 
ers as are conferred upon it by the laws under which it is incorporated. But if 
the power is conferred, and no way pointed out how it shall be exercised, 
the city authorities are necessarily clothed with a reasonable discretion how 
such act shall be done, 98 Ind. 168, 5 Ind. 38; 78 Ind. 261; 38 Ind. 49; 7 Ind. 
86; 8 Ind. 34; 2 How. (U. S.) 422. If an act is authorized, it carries v\-ith it all 
power necessary to secure its execution, 18 O. 523, see 7 O. pt. 2, p. 31. They 
are "confined within the limits that a strict construction of the grants of 
powers in their charters will assign to them." Before any power a city pro- 
poses to exercise can be used, "it must appear clearly and expressly granted in 
the enactm.ent under which she acts as a corporation," 5 Ind. 38 (railroad 
bonds), 9 Ind. 74, 29 Ind. 305; 98 111. 491; 93 111. 180; 93 III. 236; 89 111. 195. 
But when pov/er to do a particular act is conferred vipon a city, it takes by im- 
plication all the reasonable modes of executing svich power which a natural 
person may adopt in the exercise of similar po'wers, 29 Ind. 305 ; 98 Ind. 168; 
15 Ind. 395, 411; yet when the way an act must be performed is declared, that 
way must be pursued, 22 Ind. 88. All acts in excess of its charter are void, 124 
111. 314. The enumeration of special cases does not, unless the intent is appar- 
ent, exclude the implied power necessary for the proper administration of the 
municipal government, 85 Ind. 276. 

4. Liability for no?t-exercise of legislative or judicial porvers. "A munic- 
ipal corporation is, for the purposes of its creation, a government possessing to 
a limited extent sovereign powers, which, in their nature, are either legislative 
or judicial, and may be denominated governmental or public. The extent to 
which it maybe proper to exercise such powers, as well as the mode of their ex- 
ercise, by the corporation, within the limits prescribed by the law creating 
them, are, of necessity, entrusted to the judgment, discretion, and will of the 
properly constituted authorities, to whom thev are delegated. And being pub- 
lic and sovereign in their nature, the corporation is not liable to be sued, either 
for a failure to exercise them, or for errors committed in their exercise. But 
when duties of a purely ministerial character are expressly enjoined by law- on 
such corporations, or arise by necessary implication, they are responsible for 
any damages resulting to individuals from a neglect to perform^ them, or from 
their performance in an improper manner," 29 Ind. 187; 26 Ind. 17; 43 Ind. 197; 
25 Ind. 512: 84 Ind. 325; 97 Ind. i; 120 Ind. 520. Therefore a city is not liable 
for a failure to have a proper fire department; even though such a one v/ould 
prevent the loss of a house on fire, 29 Ind. 1S7; nor to cause a street to be graded, 
34 Ind. 471 ; nor for granting the right of way to a railroad through a street, 26 
Ind. 17; nor for failure to undertake the construction of sewers, 79 Ind. 491, 



113] GENERAL POWERS OF COUNCIL. [§3I06 

S. C. 41 Am. R. 61S; I03 Ind. 372. This power the city can not surrender, 91 
Ind. 566; 120 Ind. 520. 

5. Liability for exercise of ministerial diiiies, "Where duties of a purely 
ministerial nature are positively enjoined on them by law, or arise bv neces- 
sary implication, they are responsible for the damages resulting to individuals, 
either from a neglect to perform them, or from their performance in an improper 
manner," 26 Ind. 17. Thus a municipal corporation is liable for injury resulting 
from a negligent error in the plan of a drain or sewer, 79 Ind. 491; S. C. 41 
Am. R. 61S; 75 Ind. 241; S. C. 29 Am. R. 135; 30 Ind. 235; 38 Ind. 348; 39 
Ind. 2S2, 112 Ind. 542; 103 Ind. 314; loS Ind. 7, S. C. 58 Am. R. 22; 96 Ind. 
236; 119 Ind. 14S. '"Skill and care must extend both to the plan and its exe- 
cution," 79 Ind. 491, 495; S. C. 41 Am. R. 618; 84 Ind. 325; but there is no 
liability in the selection of a plan unless the selection was negligentlv made, 
112 Ind. 542. The city must exercise ordinary care and skill in maintaining 
the sewers constructed by it, or adopted as a part of its svstem of drainage, 84 Ind. 
325; S. C. 43 Am. R. 86; 67 Ind. 228 ; 36 N. Y. 54; 59'N. Y. 500; 91 Ind. 591. 

6. Consequential injziries. The city is not liable for consequential injuries 
resulting from the improvements of a public street or the like, in a careful and 
skillful manner, 84 Ind. 325; 17 Ind. 267; 19 Ind. 326; 6 Ind. 237; 79 Ind. 491, 
S. C. 41 Am. R. 61S; 108 Ind. 7; 119 Ind. 148. 

7. Thro'ving zvater in a stream on land. The city has no right to collect 
water in a body or stream, and then lead it to a point near the property of an 
individual, without providing a proper outlet, 84 Ind. 325 ; 38 Ind. 348 ; 75 Ind. 
241, S. C. 39 Am. R. 135; 79 N. Y. 470, S. C. 31^ Am. R. 1540; 16 W. Va. 282, 
S. C. 37 Am. R, 763. 

8. Surface ii'ater. " A city is not liable for injury resulting from surface 
water thrown from its streets as the result of their skill and proper improvement, 
but is liable for injuries proximately resulting if it collects the water into a channel 
and pours it upon another's land," 84 Ind. 325; 72 Ind. 134, S. C. 37 Am. R. 
150; 73 Ind. 278, S. C. 38 Am. R. 139; 64 Ind. 167, S. C. 31 Am. R. 114; 67 Ind. 
201; 67 N. Y. 204. 

9. Freshets. '' Against extraordinary and unprecedented freshets municipal 
corporations are not bound to provide, but they are bound to make provisions 
for such as may be reasonably expected to occur, even though their occurrence 
be at irregular and wide intervals of time. Ordinary diligence requires that 
the corporate officers take into consideration the past history of the water- 
course, and make reasonable provisions for freshets of a similar character to 
those which have previously occurred, and Avhich were not of an extraordinary 
character," 84 Ind. 325; 3 Ind. 236; 52 Wis. 430, S. C. 38 Am. R. 748. 

10. Providing outlets for zuater. "Where the system of drainage adopted 
by a municipal corporation makes it necessary to provide outlets for water ac- 
cumulated in confined channels, the corporation must exercise reasonable care 
and skill in providing them, or answer in damages to the property owners who 
sustain injury from a neglect of this duty. Having created the necessity, the 
duty devolves upon it to make reasonable provisions for the escape of the water 
without injury to adjacent proprietors," 84 Ind. 325; S. C. 43 Am. R. 86; 42 la. 
308, S. C. 20 Am. R. 622; 112 Ind. 542; 104 Ind. 503; 108 Ind. 7. 

11. Must use reas07iahlc diligence to complete ivork. In the performance of 
work in a street, where the city acts ministerially, it must proceed Avith ordi- 
nary diligence, care, and skill. "The work must be prosecuted with reasonable 
diligence, for the corporation has no right to obstruct the public highways for 
an unreasonable length of time," 79 Ind. 491, S. C. 41 Am. R. 618. 

12. Care in selection of flaii. "It is, therefore, of paramount importance 
whether the municipal authorities exercised due care in securing a plan, for if 
they did exercise such care, then their error is one of judgment which can not 
create liability. It is, however, negligence for men unskilled in the business of 
preparing plans for sewers to act upon their own judgment in cases where 
skill is required. It is their duty to use reasonable care to procure the services 
of men skilled in such affairs, and if they fail to exercise this care they are 
guilty of negligence for which the corporation must answer," 112 Ind. 542; 66 
Cal. 76; 91 U. S. 540; 42 la. 308; I Mackey, 427; 123 Ind. 250. 



§3io6] CITIES. [ti4 

13. Incidental foivers. A city may sell stock taken by it in a private cor- 
poration, under its incidental powers, 94 Ind. 305; 51 Ind. 565; So Ind. 159; 
construct sewers at the public expense, 102 Ind. 372, 376; 28 Conn. 363; 28 
N. J. Eq. 187; 2 Grant (Pa.) 291; acquire necessary property, 102 Ind. 372, 377; 
41 ind. 212; 47 Ind. 438; employ counsel to defend its marshal, 103 Ind. 196, 
S. C. 53 Am. R. 504; 8 R. I. 431; 11 Gray, 340; buy a fire engine, 106 Ind.. 129; 
employ counsel to compromise a city debt, 116 Ind. 15, but not grant the right 
of wav to a street railway to lay a track in the street, 78 Ind. 261; 122 Ind. 344, 
It may prevent the accumulation of combustible materials within the city limits, 
8^ Ind. 276. Added or extraordinary powers given a corporation does not take 
away its incidental powers, 102 Ind. 372, 377; 47 Ind. 438. "The strictness then 
to be observed in giving construction to municipal charters should be such as 
to carry into effect every power clearly intended to be conferred on the munici- 
pality, and every power necessarily implied, in order to the complete exercise 
of the powers granted," 7 Ind. 86; 85 Ind. 276; S. C. 44 Ind. 13; 100 Ind. 575, 
S. C. 50 Am. R. 830. 

14. Failure to enforce ordinances. A city is not liable for a failure to 
enforce its ordinances, 88 Ind. 330. 

15. Torts of officers, or breach of contract. Cities are not responsible for 
the torts of its officers, or breach of contract, when the acts of the officers are 
beyond the general powers of the corporation; but they are responsible when 
the acts of the officers are within the general corporate powers, as the construc- 
tion of a sewer, 102 Ind. 372. 

16. License or regulate. Under its incidental powers a city can not require 
a license to retail intoxicating liquors, 82 Ind. 175; nor prohibit their sale on 
Sunday under a power to license and regulate, 82 Ind. 175. Previous to the act 
of 1891 (632325) it could not require a license of pawnbrokers, but it could 
require them to list all articles pawned with them, and to submit them to the 
police officers on demand for inspection in order to prevent theft, 26 N. E. Rep. 
560. 

17. Manner of entering into a contract. "The common council can only 
contract by an order, resolution, or ordinance passed in the manner required by 
the statute; and where a contract has thus been made, it must be repealed or 
annulled by a vote of the common council," 43 Ind. 481; 66 Ind. 396. But this 
rule has been very much relaxed. " Such a corporation may now, through its 
authorized officers and agents, be bound by parol, provided the contract be not 
one which the law requires to be in writing," 107 Ind. 232. " Where, however, a 
common council, properly convened, enters into a contract with an attorney, 
or where an attorney is employed through the agency of a committee or 
other authorized person, and has performed services of which the munic- 
ipality has accepted the benefit, it will be too late, w^hen he asks to be com- 
pensated for his services according to the agreement, to object that the con- 
tract was not in writing, or that the vote of the council does not appear upon 
the record of its proceedings. In respect to such contracts, a municipal cor- 
poration may be bound by the acts of its properly authorized agents, substan- 
tially as a natm-al oerson." 116 Ind. 15, 19; II la. 506; 82 111.2-9; 105 111.85; 77 
III. 50. 

18. Ratifying contract. A city may ratify an imperfect contract, 116 Ind. 
15. 21; 103 Ind. 196, S. C. ^3 Am. R. 504; 106 Ind. 129; 92 X. Y. 360; 18 Pac. 
Rep. 287; 116 111. 531. 

19. Compromise of claims, A city may compromise a claim, 124 111. 314; 
14 111. 193. 

20. Arbitration . It may submit any claim to arbitration, 85 111. 563. 

21. Estoppel. It may be estopped, the same as an individual, Si 111. 156; 
as by the acts of its officers, 15 111. App. 122, not acting in its governmental 
capacity, 115 111, 239; but not by their inaction, 81 III. 156. 

22. Borro-iving money. A power to purchase property or the like confers 
upon a city the power to borrow money for that purpose, 78 Ind. 192; 66 Ind. 
162; 5 Ind. 38; 19 Ind. 450; 60 Ind. 511, 504; 17 Ind. 437; 22 Fed. Rep. 589; 7 
O. pt. 2, p. 31, _ 11 Wis. 470; 3 R. I. 199; 22 Neb. 614; 9 Wall. 477; 41 Pa! S\. 278, 
and the council has the absolute power to say v/hat evidences of the debt it will 



115] GENERAL POWERS OF COUNCIL. [§3I06 

issue, 78 Ind. 192. Money may be borrowed to take up old indebtedness, 49 Ind. 
169; 13 Bull. 614: or to buy fire appara'tus, 60 Ind. 504. 

Sec. 3106, Musical instruments. First. To regulate or pro- 
hibit the use of hand-organs, or instruments of any annoying char- 
acter, or other music of itinerant performers, in the streets, lanes, 
alleys, or public places of the city. 

This is valid, 3 Bates Ohio St. Dig. 419; 21 Alb. L. Jr. 176; 140 Mass. 4S5; 
63 Mich. 396, S. C. 30 N. W. Rep. 72, 35 Alb. L. J. 6; 44 Hun. 166 (salvation 
army). 

Sec. 3106. Draining lots. Second. To fill up or drain any lot 
or parcel of ground within such city, or within two miles thereof, 
whenever water has or may become so stagnant and noxious as to 
be, in the opinion of such council, a nuisance, and injurious to the 
health or comfort of such city or any part thereof, at the expense 
of the owner thereof, under such reasonable regulations as the 
common council shall prescribe : Provided, hozvever, That not to 
exceed ten per cent, of the value of such lot or land, as the same 
is valued and assessed upon the tax duplicate for city purposes, 
shall be expended in filling up or draining the same in any one 
year. 

See clause 51. Constitutional, 16 O. S. 54; 34 O. S. 551. The city is not 
bound to drain land, even though it contracts to do so, 91 Ind. 566. This clause 
authorizes the extension of claims beyond the limits of the city, and to this 
power the law attaches the duties of skill and care in its exercise, 79 Ind. 491; 
84 Ind. 325. See § 3106, clause 26. It is discretionary with a city if it will 
exercise the power of drainage, and it can not be surrendered by contract, 91 
Ind. 566. The general drainage law applies to cities. Acts 1S85, p. 130; 
El. Sup. § 1 185; formerly it did not, loi Ind. 539. 



Ordinance for Filling or Draining a Lot. 

Sec. I. Be it ordained by the Co7nmoii Council of the City of .• 

That whenever it shall be brought to the attention of said council that water 
upon any lot or parcel of ground, either within said city or within two miles 
thereof, has become or may become so stagnant and noxious as to be a nuisance 
and injurious to the health or comfort of said city or any part of it, the mayor, 
under the direction of the council, shall appoint three councilmen as a commit- 
tee to examine and report concerning the same. 

Sec. 2. Said committee shall proceed to examine said lot or parcel of 
ground, and report to the council in detail the condition thereof, especially de- 
scribing the lot or parcel of ground upon which such water is situated, with the 
owner's name, and stating whether, in their opinion, the water has or may 
become so stagnant and noxious as to be injurious to the health of said city or 
any part thereof, and the probable cost of filling up or draining the same, and 
the amount for which it is assessed for city taxation, and if situated without the 
city, the amount it is assessed for county taxation, which report shall be filed 
with the city clerk. 

Sec. 3. Immediately upon filing said report, if the committee state that it 
is so noxious to the health of said city or anv part thereof, said clerk shall set a 
day for its hearing before the council by indorsement thereon, and shall issue 
to the city marshal a notice to serve on the owner of said lot, or parcel of 

ground, as follows, as nearly as possible, viz.: To A B .• You are 

hereby notified that the common council of the city of , on the day 

of , 18 — , appointed a committee of three of its members to make an ex- 



§3io6] CITIES. . [ii6 

amination of a lot {or, parcel of land] owned bv you, reported to have water 
thereon, which has or may become so stagnant and noxious as to be a nuisance 
and injurious to the health or comfort of such city, or a part thereof ; which 

committee, on the day of , iS — , filed a report with m_e to the eifect 

that there was such a body of water upon the following described lot[cr, parcel 
of ground] owned by you, viz. • {Describe it] which water has [or, may] be- 
come so stagnant and noxious as to be [or, will become] a nuisance and injuri- 
ous to the health [or, comfort, or both] of said city [or, the western part of said 
city]. You will therefore take notice that said report is set for hearing at 7.30 
p. m., on the day of , 18 — , at the council chamber of said city be- 
fore the common council thereof, at which time you may state why said lot [or, 
parcel of ground] shall not be drained or filled up, and may produce any testi- 
mony you may see fit touching the same. 

Witness my hand and the seal of said city this — day of , 18 — . 

[City Seal.] . 



Clerk of the City of 



Sec. 4. Said marshal shall serve such notice on the person therein named, or 
on his agent in charge of the premises described, if such owner can not be found 
in the county, by giving him, or leaving one at his last and usual place of resi- 
dence, a copy thereof, certified under his hand to be a true copy, and make re- 
turn thereof. Such notice shall be served at least five days before the time set 
for hearing. In case the owner or his agent can not be found, he shall so make 
his return ; and said clerk shall immediately give ten days' public notice of the 
pendency of such proceedings, bv publication, for ten days each, in a daily, or 
for two weeks m a weekly, newspaper published in said city. In order to secure 
a sufiicient time for the service of svich notice, or for such publication, said clerk 
may change and reset the time for such hearing. 

Sec. 5. At the time set for the hearing, said covmcil, if not in session, shall 
be called into special session by the mayor, and it shall proceed to consider 
said report, hear any evidence upon the condition of such lot or parcel of 
ground; and if it is satisfied that the water thereon has or may become so stag- 
nant and noxious as to be, in their opinion, a nuisance and injurious to the 
health of such city or any part thereqf.- it shall so enter its conclusions or find- 
ings in its records, and order said owner to drain or fill up the same within a 
specified time, and if it is not drained or filled up by that time, it shall order 
the street commissioner to drain or fill the same, or that he let out the work to 
the lowest and best bidder. Provided, That if the same can not be done by an 
expenditure not exceeding ten per cent, of the assessed value of said land for 
city taxation (or in case it lies outside of the city limits, an expenditure not 
exceeding ten per cent, of the assessed value of said land for county taxation), 
then no more draining or filling shall be required in any one year of such 
owner than is equal to such ten per cent,, and the remainder of such work 
shall be completed from year to year at a rate not exceeding ten per cent, of 
such assessed value. 

Sec. 6, If such owner does not drain or fill such lot or parcel of ground, or 
if he only inadequately drains or fills it, within the time given, said street 
commissioner shall follow out the order of said council, keeping an exact ac- 
count of cost of such draining or filling, or the amount of contract, and report 
the same to the city clerk, who shall certify the amount, with a description of 
the lot or parcel of land, with the owner's name, to the city treasurer, which 
amount shall then become a lien on said lot or parcel of land, and shall be col- 
lected by the treasurer at the same time, and in the same manner, that he col- 
lects city delinquent taxes on real estate. 

Sec. 7. The common council may extend the time of the hearing of the 
report of the committee from, time to time until a final hearing is reached. 

Sec S. If the committee report that, in their opinion, the water on such 
lot or parcel of ground, has not, and will not, become so stagnant and noxious 
as to be a nuisance to any part of the city, then said clerk shall not set the re- 
port for a hearing until ordered to do so by the council. 

Sec. 9. This ordinance shall be in force from and after its passage. 



117] GENERAL POWERS OF COUNCIL. [§3I0^ 

Resolution of Reference. 

Whereas, It has been brought to the attention of this council that 
water upon a lot or parcel of land, said to be owned by A. B., situated on Elm 
street, between Pratt and St. Clair streets, has or may become so stagnant and 
noxious as to be injurious to the health or comfort of this city, or a part of it, 
therefore, Resolved, That the mayor appoint a committee of three councilmen 
to investigate and report thereon. 

Report of Committee. 

To the Common Council of the City of ; 

Pursuant to your order of the day of , i8 — , we proceeded 

to examine the lot of land referred to therein, of which the following is a correct 

description, viz.. Lot 13 of Voorhis' addition to the citj' of , county of 

, and State of Indiana, which is now owned by . We find that 

thereon is a large body of water which has \or, mayj become, in our opinion, 
so stagnant and noxious as to be a nuisance and injurious to the health and 
comfort of that part of said city. The probable cost of filling up the same is 
% ; of draining it, % . It is valued for city taxation at %- 



Clerk's indorsement on Report. 



C. D., 
E. F., 
G. H. 



Filed , — iS, and set for hearing . iS — , at 7.30 p. m, 

X. Y. 



City Clerk. 



Order-Book Entry. 



Whereas, this council on day of 18 — , referred to a com- 
mittee of three councilmen, appointed by the mayor, the matter of the exam- 
ination of the alleged stagnant water on a lot lying on Elm street, between 
Pratt and St. Clair streets, said to be owned by A. B.; and, 

Whereas, said committee reported on day of , iS— , that they 

had examined said lot, which they described as follows, to wit: Lot 13 of Voor- 
his' addition to the city of , county of , State of Indiana, which is 

owned by A. B.; and that the water thereon has \or, may] become so stagnant 
and noxious as to be, in their opinion, a nuisance and injurious to the health 
and comfort of that part of said city; and, 

Whereas, the hearing of said matter was set by the city clerk for the 

day of , 18 — , due notice of which was served upon said A. B. by the city 

marshal at least five days before the time set for hearing [cr, by publication for 
ten days each in the Daily Argics of said city], at which time the matter was 
duly heard; and, 

Whereas, it is the opinion of this council and it so finds that said water upon 
said lot has [or, may] become so stagnant and noxious as to be a nuisance and 
injurious to the health of that part of said city; therefore. 

Resolved, That said lot be, and is hereby, ordered drained \or, filled up] 

within days from the date; and if the sarnie is not completed by the time 

herein given, then it is ordered that the city street commissioner proceed forth- 
with to drain \or, fill up] said lot either bv employing a force to do so or bv let- 
ting the same out by contract, in all things obeying the ordinance in such case 
made and provided. 

[/« case it vjill cost over ten -per cent, of the assessed value the follozjino- should 
precede the resolve :\ and, 

Whereas, It will cost % to drain \or, iill up] said lot, and the assessed 

value thereof for city taxation is ij^ ; 

\After this, proceed as follozus :] 



§ 3io6j CITIES. [ii8 

Resolved^ That said lot be, and is hereby, ordered drained [or, filled up], by 
an expenditure of ten per cent, per annum of such valuation for city taxation, 
until the same is drained \or, filled up]. And if said ten per cent, is not ex- 
pended by the owner of said land by the day of of each year, 

then the street commissioner shall expend that amount in v/ork thereon, and 
report the amount thereof to the city clerk. 

Street Commissioner's Report to City Clerk. 

To the Clerk of the City of ; 



I hereby report and certify that I have expended the sum of $ in 

draining [cr, filling up] lot 13 of Voorhis' addition to the city of , county 

of , State of Indiana, as ordered by the common council of said city, [or, 

that I let out the contract for the draining \or, filling up] lot 13, etc., as ordered 
by the common council of said city, to the lowest and best bidder ; and that 

there is due said contractor by reason of such work the sum of $ , that 

being the lowest and best bid.] 

U. Z., 

Street Commissioner of the City of . 

Clerk's Warrant to City Treasurer. 



To the Treasurer of the City of ; 

I hereby certify, as appears from the report of the marshal of said city 
that he has expended, according to the order of the common council of said 

city, the sum of % in draining [cr, filling up] lot 13 of Voorhis' addition 

to said city, county of , and State of , owned by A. B.; which you 

will proceed to collect by a sale of said lot the same as if said amount was due 
thereon for delinquent taxes; and this to you shall be a sufficient warrant for 
that purpose. 

X Y 

[City Seal.] ' Clerk of the City of —^. 

Sec. 3106. Firearms and fireworks. Third. To prevent or 
regulate the use of firearms, fireworks, or other things or prac- 
tices tending to endanger persons or property. 

1. 2 Daly (N. Y.) 307; 27 111. App. 200, and clause 32. The city is not 
liable for a failure to pass an ordinance regulating the use of firearms or fire- 
works, 137 Mass. 171 ; 42 O. S. 625 ; nor for not enforcing it after it is enacted, 
even though the town officers participate in their use, 61 la. 83 ; nor for an injury 
caused by one licensed by the city to use a shooting gallery on private property, 
67 Wis. 343; nor for a suspension of the ordinance, 72 N. C. 55, S. C. 21 Am. 
R. 451 ; nor for a failure to abate a steam engine dangerous to adjacent prop- 
erty, when it had the power to do so, 51 Ala. 199 ; S. C. 23 Am. R. 545 ; nor for fire 
and damages for failure to repair reservoir, 69 Pa. St. 420, S. C. 8 Am. R. 272 ; 
nor for failure to prohibit dangerous occupation, 117 Pa. St. 414; nor for dam- 
age by swine at large, 18 Wis. 83 ; nor for failure to abate a nuisance, 79 Mo. 
319- 

2. Storage of gunpowder within the city may be prohibited, 4 Ga. 509. 

Sec, 3106. Noxious trades. Foin'tJi. To direct the location of tal- 
low chandleries, soap factories, and other buildings or structures; 
and to prohibit the erection of such buildings, or the continuance 
of noxious trades or business therein, whenever the health or wel- 
fare of the city shall require the same ; and, for that purpose, shall 
have jurisdiction two miles in every direction from the city limits. 



119] GENERAL POWERS OF COUNCIL. [§3I06 

See I Bav. (S.C.) 3S2, Touching the two-mile limit, see § 3154. A thing 
oftensive physically to the senses, and thereby making life uncomi'ortable, is a 
nuisance, 22 Ill.App.279; 76 ill. 322. Unwholesome trades, as slaughter houses, 
mav be prevented in densely populated cities, 98 111. 305; 91 Ind.291, 98 Ind. 
73. One has no right to carry on a business in a p)opulous city, unless it can be 
done without emitting oftensive and noxious odors detrimental and oftensive to 
the people of its locality, 24 111. App. 647. Privies are regarded as prima facie 
a nuisance, and may be abated if they become nuisances, 76 111. 322. Dense 
smoke from chimneys may become a nuisance, no 111. 405. Mills, or even man- 
ufactories, may become nuisances, though usually not regarded as such, 59 111. 
317; 76 111. 322; 73 Ind. 284. As to licensing such houses, see 88 111. 221; 25 IlL 
App. 200. If cit_v maintain a nuisance it is liable the same as an individual, 60 
Ind. 511 ; 12 Heisk. (Tenn.) 684 (a pesthouse). 

Sec. 3108. Cemeteries. Fifth. To establish cemeteries or burial- 
places within or without such city, and to provide for tlie sanctity 
of the dead, and to prohibit interments except in cemeteries here- 
tofore established by law. 

1. A city may purchase outside its limits, § 3106, clause 45. This does not 
authorize the city to pass an ordinance subjecting the sextons of private ceme- 
teries to the control of the city sexton, 13 Ind. 134. But the council m^ay pass 
ordinances to punish the unauthorized disturbance of those buried in cemeteries 
within the city, and the desecration of their resting places, no matter by whom 
or where within the city limits they have been buried. If the city has estab- 
lished a cemetery without the city, it has as full control over it as if it had been 
established within the city limits, 13 Ind. 134. But cities can not prevent the 
establishment of cemeteries without the city limits , nor control them after estab- 
lished, 28 Ind. 79. A city can not be enjoined from establishing a cemetery 
within the city limits, 23 Ind. 186. 

2. Touching liability of city for removing a body, see 30 Ind. 482. A city 
in Ohio owning a cemetery is liable for injury to an employe of the trustees, 
caused bv the carelessness of the superintendent and the trustees, 41 Ohio 
St. 149. 

3. Cemeteries are not^^r se nuisances, but may become so, 44 111. 81. Bur- 
ials may be prohibited in densely populated districts, 5 Cow. 538; 13 Ind, 134; 
13 App. Cas. 446. Time and manner of burial, depth of burial, and use of 
vaults may be regvilated, 17 Brad. (111. App.) 476; 4 Strob. L. (S. C.) 306. Un- 
reasonable regulations are void, 16 Pick. 121. 

Sec. 3106. Quarantine. Sixth. To establish quarantine regula- 
tions. 

1, This clause is valid, 33 Cal. 279; i Bush. 139; 4 Nev. 20; 43 Cal. 242; 
64 Tex. 316, 84 Ky. 290; i Gil. (Md.) 264, Keeping vessels in quarantine for a 
specified time does not violate the commerce clause of the federal constitution, 
18 Mo. 238; see 19 Mo. 13, and 11 Mo. 103, 41 Me. 363 ; 45 Me. 496. 

2. As to private hospitals, see 77 Ind. 189. 

Sec. r3106. Vice and immorality. Seveitth. To preserve peace 
and good order, prevent vice and immorality, and quell riots and 
disorderly assemblages. 

Under this clause the city can not prevent the use of steam vrhistles vrithin 
the corporation, 3 O. C.C. 214. Touching power of mayor to employ force to 
suppress a mob, see 5 Gray. 121. The city is not liable i'or property destroyed 
by mobs, 12 O. S. 371:;; i3"'Blatchf. 2S9; 13 B. Mon. c:;9; 16 B. Men. 1S4; 42 O. 
S. 625; 94 Pa. St. 121. 

Sec. 3106. Police. Eighth. To establish and regulate the police 
of the city ; and may, in their discretion, authorize the ma\'or, or a 



§ 3I06] * CITIES. [l20 

board of police to be selected by the common council, to make all 
appointments of officers and members of such police, and ^ive 
such mayor or board of police full power to remove from office 
any officer or member of such police for neglect of duty or for 
other good cause. 

1. The city is not liable for the negligence of its police officers; nor for their 
malicious acts. Such officers are not the agents of the city, but are pablic offi- 
cers, 88 Ind. 330. These police officers possess the powers of peace officers at 
common law as well as those conterred by statutes, 49 Ind. 56. See § 3075 and 
710 tes. 

2. This clause is qualified, by prohibiting the mayor to appoint certain 
persons policemen, § 3043(7, acts 18S9, p. 301 ; El. Sup. § 1959. The act of 1889 
(acts 1889, p. 222, and El. Sup. §§ 721 to 737), creating a police board for cities 
having a population of 29,000 is unconstuuiional, 118 Ind. 426. 

Sec. 3106. Gaming — Houses cf ill-fame. NintJi. To suppress 
gaming and gaming-houses, and houses of ill-fame ; to prohibit and 
destroy instruments and devices of gaming; and restrain fraudulent 
practices within the said city. 

I. This section requires an ordinance to put it in force. An ordinance 
authorizing the arrest and punishment of any person keeping or visiting an es- 
tablishment for the pvirpose of gaming, does not authorize the seizure, detention, 
or destruction of instruments used for gambling, 60 Ind. 371. The word 
"gaming" under this and the fourteenth clause is used in the same sense in 
which it is employed in the criminal code (60 Ind. 457) ; and, possibly, this 
statute, with respect to gambling, is void under § 3066^ ; same section R. S. 
1881, § 1640 

2 What is said of so much of the statute as relates to " gaming "i being void 
is probably true with respect to the remaining portion 

3c Evidence of reputation as to the character of the house is admissible for 
the prosecution, and proof of particular acts of lewdness in the house is not ab- 
solutely necessary to establish guilt, 93 Ind. 375. For cases under the general 
criminal law of the State, see 66 Ind. 348; 88 Ind. 228; 102 Ind. 162; 112 Ind. 
245- 

4. Houses of this nature are nuisances, 25 O. S. 249; 33 Conn. 91. Power 
to " suppress" authorizes ordinance forbidding renting houses for purposes of 
prostitution, 3 Sneed, 347 ; but ordinance prohibiting renting to prostitutes 
without regard to use to which they intend to put house is void, 54 Tex. 38S. 
Under general police powers lewd women may be prohibited from loitering on 
the streets, 74 Ga. 516; renting rooms to such persons may be regulated, 14 La. 
Ann. 37 ; and such persons may be prohibited from waiting on customers in 
saloons and restaurants, 43 Mo. 48. But covmcil can not decide that a house is 
kept for purposes of prostitution, nor order its demolition, 2 Doug. (Mich.) 332. 
Knowingly associating with prostitutes can not be made an offense, 53 Mo. 582; 
neither can walking with prostitutes, 4 Bull. loi. 

Sec= 3106. Cleansing house or street. Tenth. To compel the oc- 
cupants of any building or out-house situate upon any real estate 
in such city, that is filthy or unwholesome, to abate or cleanse the 
same, and to clean the streets and alleys adjoining such property. 

This clause requires an ordinance -cO enforce its provisions. Cases under 
similar povvers, 61 Md. 259 (explaining 49 Md. 217); 24 N.J. Eq. 169; 49 N.J. L. 
391. Power to remove "dirt, ashes, rubbish, filth, dung, and soil," does not 
authorize a by-law- for the removal of snow, 5 E. & B. 49. But a power to make 
" needful and salutary by-laws," authorizes the passage of an ordinance requir- 
mg abutting lot-owner to clear away snow on the side-walks, 16 Pick. 504 ; 11 
Allen, 2S7; 14 Gray 252; but see 88 111. 554. See clause 22. 



I2l] GENERAL POWERS OF COUNCIL. [§ 3 I06 

Sec. 3106. Markets and slaughter-houses. Eleventh. To direct the 
location of markets or slaughter-houses or powder magazines, and 
to regulate the same^and, for that purpose, shall have jurisdiction 
for two miles in all directions from the city limits. 

1. See clavises 29, 33, and § 3107. The city may require owners of powder 
magazines to remove them beyond the city limits two miles, at their own ex- 
pense, 81 Va. 636, and may declare them a nuisance, i Swan (Tenn.) 213; 18 B. 
Mon. Soo. To keep powder in large quantities in a city is an offense at com- 
mon law, 2 Str. 1167; 19 Ves. 617; i Russ. 321. See English cases. Dears & B. 
209; S. C. 26 L. J. Mag. Cas. 196; 2B. &S. 523; L. R. 72 B. 61, 429. 

2. When market-houses may not be located on a street, §§ 3107 to 3109. A 
city may prohibit private markets within a reasonable designated distance of 
the public market, 27 La. Ann. 417, S. C, 21 Am. R. 563; 8 Johns, 41S; 7 la. 102; 
10 Wend. 100; II Pick. 16; i Jones (N. C.) 46 ; 14 Wend. 87 ; 13 la. 210 ; 11 
Rich. (S.C.) 551; 25 Mo. 37. 

3. Under this clause an ordinance can not be passed which requires, for a 
specified period, that all animals shall be slaughtered in a certain building, the 
owner thereof paying the owner of the building a certain specified rate for 
slaughtering the animal. It is invalid, because it tends to create a monopoly, 
45 111. 90. The power to " regulate" includes the power to prohibit the use of 
a slaughter-house whenever it becomes dangerous to the health and comfort 
of the community, 82 N. Y. 318, S.C. 22 Alb. L. Jr. 430. But a by-law, that no 
one shall keep a slaughter-house within the city without special leave of the 
council, is void, as tending to create a monopoly, 33 U.C. Q^ B. 181. There is 
no vested right to maintain a slaughter-house which has become a nuisance, 50 
111.241; 97 U S. 659, nor can those who maintain it defend as against the State, 
on the ground that they have a license from the city, 49 N.J. L. 94. 

4. A city may resort to equity to prevent the maintenance or creation of 
a nuisance, 11 Allen, 398 ; 109 Mass. 305, S. C. 12 Am. R. 694 {contra, 34 Wis. 
450, S.C. 17 Am. R. 446 ; 7 Paige, 261 ; 41 Pa. St. 481). 

5. Under the power to regulate is, of necessity, included the appropriation 
of one or more parts of the market for one purpose, and another part or 
parts for other purposes ; of providing that free passages through the market 
be kept open for ready access to shops, stalls, or other places where different 
commodities are exposed for sale, 23 Up. Can. Q^B. 426. 

Sec. 3106, Eegnlating vehicles. TwelftJi. To regulate the use 
of coaches, hacks, drays, and other vehicles for the transportation 
of passengers, freight, or other articles, to or from points within 
the city, for hire or pay. 

I. See clause 36. A city has power to enact an ordinance authorizing 
police officers to prescribe the places where hacks shall stand at a railroad de- 
pot, and requiring drivers to obey the directions of such officers in regard to the 
places which their respective vehicles shall occupy, 118 Ind. 41; 27 Minn. 364; 
5 Cush. 438; 2 Cush. 562. This clause does not authorize the city to exact a 
license of non-resident owners of wagons engaged in hauling into and out of 
the city for hire, 51 Mo 122, This does not extend to private vehicles used by 
a manufacturer, 46 Mo. 574. 

2. Licensing vehicles used upon the streets is constitutional, 45 O. S. 63. 
Routes for vehicles which tend to hinder traffic may be prescribed, and use of 
other streets prohibited, 2 Cush. 562. Rates of tariff may be established, 114 
Mass. 328; 98 Mass. i. Stand for hacks, etc., may be established and standing- 
else where prohibited, 122 Mass. 60; but not so as to interfere with the use of 
adjacent property, 39 O. S. 333; 41 Hun. 117; 7 Bull. 57. Regulations may be 
made as to standing near places of amusement, 5 Cush. 438, and railroad depots, 
27 Minn. 364. A regulation relating to wagons and other vehicles used for hire 
will not include delivery wagon of merchant, although he charges for deliver- 
ing goods, 71 111. 269; 46 Mo. 574; but otherwise if the provision is as to "'vehicles 
run for profit," 13 B.J. Lea, 545. 



§ 3I06] CITIES. [l22 

Sec. 3106. Liquor licenses. Thirteenth. To regulate and license 
all inns, taverns, or other places used or kept for public entertain- 
ment ; also all shops or other places kept for the sale of articles 
[hquors] to be used in and upon the premises. 

1. It is evident that the vrord " liquors" should be inserted in place of the 
word "articles." It was so taken m 109 Ind. 466, and m 118 Ind. 103. Unless 
especially authorized to exact a license, a city can not do so, 60 Ind, 327 , 40 
Ind. 449; 61 Ind. 24; 16 Ind. 337. 

2. This clause is valid, 39 Ind. 429. When no limit was placed upon the 
amount of the license fee, it was held that a fee of $500 was valid, 39 Ind. 429; 
so $300, 41 Ind. 7; but not io -prohibit, 41 Ind. 7; 33 Ind. 507, even on Sunday, 
82 Ind. 175; but It may prohibit the sale if a license is not taken cut 118 Ind. 
103. The fact that the county may exact a license does not prohibit the city, 
see 9 3066(7, note. The validity of the election of members of the city council 
can not be attacked in a prosecution for a violation of an ordinance requiring 
a license to be taken out, 29 Ind. 118. 

3. Money paid for a license which the city has no power to exact can not 
be recovered hack, 51 Ind. 264; 54 Ind. 83, 55 Ind. 14 (overruling 40 Ind. 340; 
46 Ind. 552) ; 61 Ind. 445 ; unless there is a contract with the council to return 
it if the ordinance exacting it is held void by the courts, 84 Ind. 31. 

4. A license to retail liquor \?> not a contract, zx\di. may be annulled by the 
legislature before the date of its expiration, 77 Ind. 213; 120 Ind. 483. The 
right to demand a license may be limited to those liaving a county license, 118 
Ind, 114. A city may regulate the sale of fermented cider, 118 Ind. 114. 

5. Cities can not require in amount over $250 for a liquor license, § 5317 
(as amended in 1889, acts 1889, p. 395; El. Sup. § 1684). This act increasing 
the license fee is valid, 120 Ind. 476, 483. A new license can not be demanded 
before the old one has expired, when the old one does not limit the sale to any 
particular place, 119 Ind. 494. 

6. Cities may exact a license of those retailing vjithin tvjo miles of their 
limits, 6 3154; 109 Ind. 466; 118 Ind. 279; 120 Ind. 483. 

7. A license can not be transferred, even to the purchaser of the place for 
which it was issued, 105 Ind. 342. 

8. A city may require all saloons to be locked on Sundays, holidaj-s, and 
election days, 125 Ind. 6; 26 N. E. Rep. 807. A city may adopt an ordinance 
requiring all saloons to be closed during the hours between 11 p. m.and 5 a.m., 
and during such times that all door screens be raised and obstructions removed, 
so as to give an vxnobstructed viev/ of the interior, and may require all strangers 
to vacate said premises, 125 Ind. 404. 

Sec. 3108. Licennes for tables, etc. Fotii'teentJi. To regulate and 
restrain all tables, alleys, machines, devices, or places of any kind 
for sports or games, kept for hire or pay, or to prohibit the use of 
the same, as aforesaid, if deemed expedient, without a license 
being first obtained therefor; and, if deemed necessary to preserve 
peace, good order, and morality, to prohibit the use of the same, 
as aforesaid, by the infliction of such penalties as this act wiU per- 
mit, to be provided for by ordinance. 

1. The power to restrain or regulate tables, etc., is limited to those ''heft 
for hire or payp 

2. This clause is valid; and an ordinance under it prohibiting bowling 
alleys is also valid, 7 Ind. 86; even though the prohibition extends only to 
minors, 60 Ind. 457. An ordinance prohibiting the owner of a billiard table 
from allowing a minor "to participate in any game of any kind whatever," 
refers to a game upon the result of which a wager depends ; and not to a game 
played by him for amusement, 60 Ind. 467 (see 62 Ind. i). 



123] GENERAL POWERS OF COUNCIL. [§3lo6 

3. A bowling alley is not fer sc a nuisance. 32 N.J. L. 15S; nor billiards, 
5 Hill, N. Y. 121. An ordinance requiring places of amusement (bowling 
alleys) to be closed by a certain Jiour is valid, 29 Me. 457; 38 N. H. 426. The 
city has no power to license a keno table ^ 48 Ala. 199. So an ordinance that 
does not fix a definite license fee, open to all alike, and does not specify any 
length of time that it is to run, is void, 117 Ind. 221. 

Sec. 3106. Theaters. Fifteaith. To regulate and restrain all 
theatrical and other exhibitions and public shows for which money 
is demanded or received; and, if deemed expedient, to prohibit 
the same without a license having been first obtained therefor. 

1. This clause is valid, 3 Ala. 137; 9 Pick. 415; 15 O. 625; 13 La. Ann. 56 ; 
10 La. Ann. 56; 13 Gratt., 767; 8 Ga. 23; 12 Ala. 173; 7 Md. i; 2 B. Mon. (Ky.) 
134. The city may require one takmg out a license to pay, in addition to the 
license fee, the cost of issuing it, 3 Ala. 137. This applies to amateur perform- 
ances, 10 Abb. Pr. N. S. 216; for legerdemain, not being a theatrical exhibition, 
see 22 Ala. 73. It includes negro minstrelsy, 4 Lea. 312. 

2. These licenses are not transferable, 3 Gilm. (Ill.)96; Morris(Ja.) 199, 473; 
9 La. Ann. 430. The city can not require the exhibitor to fay a folice officer 
of the city for his attendance at the exhibition, 3 Ark. no; nor forbid the sale 
of reserved seats after thfe doors are open and the exhibition commenced, i Mc- 
Arthur (D. C.) 581 ; nor prohibit shows, not immoral, by exacting a high 
license, i O. S. 26S ; 3 Ala. 137. 

3. If the city license and authorize the exhibition of voild animals on the 
streets, it Avill be liable for all dainagcs a private person may sustain by the ani- 
mals being in the streets. Such an exhibition in the public street is a nuisance, 
42 Wis. 643, S.C. 24 Am. R. 435; 49 Wis. 605. But it is not liable for licensing 
a shooting gallery to be held on private ground, 67 Wis. 343. So merely licens- 
ing the exhibition of wild animals within the city does not render the city 
liable for the neglect of the police in permitting the exhibition on the street, 
129 Mass. 594, S. C. 21 Alb. L. Jr. 3. A circus may become a nuisance and may 
be restrained. L. R. 4 Ch. App. 388; 4 Esp. 200. 

Sec. 3106. Theaters, proviso. Sixteenth. It is expressly pro- 
vided that lectures on scientific, historic, benevolent, or literary 
subjects, and the apparatus for the elucidation of the same, and 
specimens of fine arts, shall not be deemed within the provisions 
of this act. 

The ordinance under this and the preceding clause must fix the license fee, 
which all persons engaged in the business must pay ; and if it does not do that 
and define the time of the duration of the license to be issued, it is void. If the 
error is corrected by a supplemental ordinance, such supplemental ordinance 
must be published, 117 Ind. 221. But see 38 la. 96. 

Sec. 3106. Driving. Seventeenth. To prevent immoderate rid- 
ing or driving, and cause the person guilty of the same to be 
stopped thereat by any officer of said city. 

See clause 39. Any one driving faster than the ordinance permits may be 
arrested upon viev/ by a police officer, 48 Ind. 19. Prohibiting driving " faster 
than an ordinary trot " is a valid exercise of power, 48 Ind. 19. In a prosecu- 
tion under an ordinance forbidding fast driving, it is not necessary to show 
that any one was actually hurt ; nor can evidence be introduced to show the 
defendant's general character as a careful driver, 3 Pick. 462. One negligently 
driving over another is not guilty of assault and battery simply because he Avas 
driving faster than an ordinance permitted, 114 Mass. 323, S. "C. 19 Am R. 362. 

Sec. 3106. Incumbering' streets. EigJitcenth. To prevent the 
incumbering of streets, squares, sidewalks, and crossings with ve- 



§ 3io6] CITIES. [124 

hides, or any other substance or materials whatever, interfering 
with the free use of the same. 

I See §§ 3161 and 3191, note. Construction in Michigan is that this clause 
does not apply to permanent obstructions, 15 Mich. 54. 

2. "Necessity justifies actions -which would otherwise be nuisances; this 
necessity need not be absolute — it is enough if it be reasonable. No man has 
a right to throw wood or stones into the street at pleasure; but inasmuch as fuel 
is necessary, a man may throw wood into the street for the purpose of having 
it carried "to his house, and it mav lie there a reasonable time. So, because 
building is necessary, stones, brick, lime, sand, and other materials may be placed 
in the street, provided it is done in the most convenient manner," i S. & R. 
(Pa.) 217; I Denio, 524; 8 O. S. 35S, 374; 3 Camp. 226,231, The materials can 
be left in the street for only a reasonable length of time, and then, probably, 
only from want of room elsewhere, 12 Ind. 515 ; 59 Ind. 592 ; 83 Mo. 345. The 
city may temporarily close the street when improvements are being made, 83 
Mo. 345. It may take a bond of indemnity from one encumbering the street 
with materials, 53 111. 3S. The council can authorize the obstruction of -a street 
only by an ordinance, not bv an order. If it proceeds by order to allow build- 
ing' m.aterials to be put in a street, it may revoke the license thus granted at any 
time. Where sand was placed in the street under such a license, and the owner 
refused to remove it, the council directed it be removed and placed on the streets 
adjacent; and in an action against the city it was held that whatever benefits the 
owner (whose lot was adjacent) received in the increased value of his lot by 
reason of the street being made better should be set off against the value of the 
sand removed. A large pile of sand in a street was held to be a nuisance. 27 
Ind. 394. A city has full power to remove obstructions in the street, 34 Ind. 
304; 36 Ind. 522. 

3. If one's business requires the loading- and unloading of rL'^^o;^.? in the 
street so that they encumber it unduly, he must cease his business or move else- 
where, 6 East. 427; 36 Ind. p. 527; as the gathering of carts at a distillery for 
the reception of slops, i Denio, 524; keeping coaches at a stand in the street for 
passengers, 3 Camp. 226; 8 U. C. C. P. 236; timber by a timber merchant, 6 
East. 230; see 6 C. & P. 636; 3 B. & Aid. 184; 67 Pa. St. 355. A highway can 
not be used as a stable-yard, 3 Camp. 224 (see 10 U. C. Q^ B.354); nor for plac- 
ing a cart and machinery for the purpose of taking photographs, 24 U. C. C. P. 
575; or a projecting show board. L. R. i Ex. Div. 349: L. R. 5 Ch. Div. 713; 
nor for storing raihyay cars, 23 U. C. C. P. 143 (L. R. 3 Ex. Div. 268;) 91 N. Y. 
14S : nor with weighing scales, 21 Gr. Ch. (Can.; 129. 

4. A city may regulate the moving of buildings in the street, 35 N. H. 257. 

5. Doors or shutters opening into the street, or holes in the sidewalk, cov- 
ered with iron and glass so that they can be safely passed over bv pedestrians, 
are not obstructions, i Cush. 2S5 ; 51 N. Y. 224, S. C. 10 Am. R. 603; 21 Pick.' 
292, 297 ; 104 N. Y. 208. 

6. Buildings can not be projected bevond the line of the streets, L. R. 2 Q^ 
B. 528; 4 L. T: (N. S.) 599, S. C. 3 DcG; F. & J. 688; 8 E. & B. 469 ; 4 C. B. 
(N.S.) 228; 16 C. B. (N. S.) 209; nor a peanut or vendor's stand, 73 Ind. 185; 
42 N.J. Eq. 136; Bright (Pa.) 318; nor a stairxvay, 56 Ind. 139; 107 Mass. 234; 
67 Cal. 130; nor a market-house^ 5 Port (Ala.) 279; S. P. 30 Ga. 306; nor an 
overhanging roof , 55 N. H. 55; 47 Ind. 133; but a temporary scaffolding on a 
building is not a nuisance, loi N. Y. 377 ; nor are skids across a sidewalk tem- 
porarily for removing merchandise, loi N. Y. 254; nor door steps, when 
authorized by ordinance, 120 Mass. 330, S. C. 124 Mass. 434, S. C. 122 Mass. 173; 
65 r\Id. 266; nor 3l pu?np in the street, 26 N. E. Rep. 184. 

7. Where a city extends its limits and thereby a toll-gate and a part of a toll- 
road comes within the city, and the toll-road becomes a street, the ov.mers of 
such toll-road may still maintain the gate and collect toll, even though the 
charter of the city provides that no toll-gate shall be maintained Avithin the 
city, 37 Mich. 195;' 13 Pa. St. 555 (see 6 Oreg. 378, S. C. 25 Am. R. 531). The 
city can not take charge of so much of such toll-road as lies within its borders 
without compensating its owners ; but it mr - lay sidewalks along it, grade and 



125] GENERAL POWERS OF COUNCIL. [§3I06 

gravel it, and asses-^ the abutting land owners to pav for such work, 30 N.J. L, 
395,225, 27 N.J. L. 35, 217; 26 N.J. L, 445; 2 Mich. 138, 12 Mich. 333; 5 
Mich. 336; 17 Hun. Si. See under Ohio statute, 41 O. S. 144; 27 O. S. 584; 17 
Bull. 30; I Bull. 132; 2 Disney, 516. The national road within Indianapolis is 
a street, 29 Ind, 329. 

ADDITIONAL NOTE. 

• S. Caye, supervision, and control of the streets being given to a corpora- 
tion, it mav summarily abate a nuisance erected upon a public street which in- 
terferes with the free use of the easement on the part of the public, 2 Handy, 
236. Hedges, shrubs, and herbage belong to the owner of the fee, and can not 
be summarily destroyed, unless they interfere with travel, 21 O. S. 248. The 
right of transit on a public way is subject to such temporary impediments as 
are caused by the building and repair of houses fronting on a street, and in the 
construction of sewers, cellar-drains, etc., 8 O. S. 358; but the corporation has 
the power to properly regulate and control them so as to prevent their becom- 
ing a nuisance, Ibid. A public road coming into a corporation by the annexa- 
tion of the territory through which it runs, becomes a public highway within 
the section, although not accepted by council. 23 O. S. 610. County commis- 
sioners can not maintain an action for the obstruction of a county road brought 
within a municipal corporation by extending its limits, 35 O, S. i; but they are 
the proper parties to bring suit for damages for the destruction of a bridge on 
such road, 43 O. S. 451 Placing a fence or planting a hedge within the limits 
of a highway does not constitute such adverse possession as will confer title, 28 
O. S. 4S9, 13 O. S. 42 Kept open^ and in repair and free from nuisa^tce. This 
implies a duty for the breach of which to the injury of any one the corporation 
is liable, i Disney, 532, The ground of action is either' i. Actual zvrongful 
acts on the part of the corporation or those acting- under its authority^ and here 
no notice to the corporation is necessary. Where the corporation, by its officers, 
leaves obstructions or excavation.! in the streets by which injury occurs, it is 
liable, 38 O. S. 50; 4 O.S.80; 9 Mich. 165; 5 N. Y.69; 8 111. 349 ; 41 Barb. 381 ; 
108 Ind. 530. Or where those acting under its authority do so. It is liable for 
neglect of contractors where the thing done under its authority is in itself 
dangerous \cisterns in street], 41 O. S. 465, 34 O. S. 638, 17 N. Y. 104; 9 Mich. 
165 : or where it retains control over the mode and manner of doing the work 
[stone in street], 5 O. S. 38- And the corporation can not by any stipulations 
in the contract, providing for precautions, or that the contractor shall himself 
be liable, divest itself of liability, 17 N. Y, 104; 9 Mich. 165, 49 111. 476; 40 Mo. 
569: 67 Me. 385. The rule of independent contractor applies only when the 
work to be done is lawful, and does not constitute a nuisance, and is not in itself 
dangerous in its character, 4 Wall. 657; 5 N. Y. 432; 85 Pa. St. 247; 3 Gray, 
349- 

9. Neglect of the corporation to remove obstacles or make repairs, caused by 
the act of its own officers, or otherwise, but here notice to the corporation or 
its equivalent is necessary in order to fix a liability upon it. A dead animal 
left in the street an unreasonable length of time by which a horse was frightened, 
was held an obstruction such as'to make the city liable, 75 111. 530; also a pile 
of stones, 65 Me. 547 ; also a tent, 39 Conn. 376 ; also a pole, 46 Vt. 580 ; also a 
steam roller, 39 Conn. 435, but not a machine run by steam used to repair the 
street, without negligence, 4 Mo. App. 572, nor a broken dovju zvagon, 26 U. C. 
C. P. II ; also a rope stretched across the street, 21 Me. 29 ; also a bar-counter left 
tilted up 071 sidervalk, 104 N. Y. 344. Negligent omission to fill up an ex- 
cavation made by a wrong-doer will make the corporation liable, 16 N. Y. 161. 
Where sidewalk is out of repair and a loose board tips up when stepped vipon 
by one person, whereby another is injured, corporation is liable, 90 111. 61. 
Corporation is liable for injuries caused by excavations, with its knowledge or 
consent express or implied, made by adjoining owners for cellar ways, or areas 
for air or light, 2 Black, 418 ; 29 la. 210; 61 111. 287; 15 Kas.Si. But in such 
case the corporation has its action over agafnst tlie adjoining owner, 4 Wall. 
657: 54 Me. 46; 9 Allen, 17. And, if the owner had notice of suit, recovery 
against the corporation is conclusive of the existence of the cause of the injury, 



§3io6] CITIES. [126 

of the liability of the corporation, and the amount of damages, 10 Gray, 496; 54 
Me=46; 49N. Y.657; and the corporation may, in addition, recover expenses 
and attorneys' fees, 122 Mass. 100. Where a railroad occupies a street under 
agreement to keep it in repair, city is liable for injury caused by the railroad 
failing to do so, 41 O. S. 235; but corporation is not liable for damages to ad- 
jacent property resulting from the use of a street by a railroad, under permis- 
sion, by authority of 41 O. S. 207. Corporation may be liable for accumu- 
lations of snow "and ice on sidewalks, 9 Col. 415; 44 O. S. 505; i Disney, 
532 ; but not for snow falling from roofs of houses, 13 Gray, 59. Show cases for 
goods can not legally be placed on the street, with permission of the city, so as 
to inconvenience an adjoining owner, iS Abb. N. Cas, 123, neither can show 
windows, which cut off light and air, 33 Hun. 114. Puppet show on one side 
of street may be enjoined, if it attracts a crovv-d on the other side, so as to ob- 
struct access to place of business, 15 Abb. N. Cas. 250. In all cases of a public 
nuisance, to authorize recovery a special damage m.ust be shown, 2 Disney, 516. 
10. An action for damages can not be maintained by a prii^ate person 
against one who obstructs a street, unless he, by reason of such obstruction has 
sustained some damage peculiar to himself, and not suffered by the public 
generally. But alleging that an alley so obstructed that egress and ingress to 
valuable buildings put upon the abutting lot is prohibited, shows a cause of 
action in the owner thereof, such as is not common to the public generally, 123 
Ind. 136. 

Sec. 3106. Bathing. NineieentJi. To regulate the time and 
place of bathing in the rivers or public waters of said city. 

I. Bathing in the sea on the beach near inhabited houses, from which the 
person can be distinctly seen, is an indictable offense, although the house may 
have been recently erected, and till then the beach may have loeen used for men 
to bathe in great numbers at the place, 2 Camp. 89. 

Sec. 3103. Vagrants and prostitutes. Tzveniieth. To restrain and 
punish vagrants, mendicants, street-beggars, common prostitutes, 
and their associates. 

1. Criminal statute R. S. 18S1, § 2134; 59 Ind. 173; 78 Ind. 251. For the 
general power of cities to punish vagrants, see 11 Mo. 61. It may well be 
doubted if any part of this clause is valid, for all the persons described in it are 
punishable under criminal statutes, R. S. i88r. (^6 2001 to 2003. The cases on the 
subject from a criminal point of view, are 52 Ind. 426, 526; 66 Ind. 348; S3 Ind. 
228; 93 Ind. 375; 102 Ind. 156; 105 Ind. 271; 112 Ind. 433. 

2, Generally, houses of this nature are nuisances, 25 O. S. 249; 33 Conn. 91. 
Pow-er to "suppress ' authorizes ordinance forbidding renting houses for pur- 
poses of prostitution, 3 Sneed, 347, but ordinance prohibiting renting to pros- 
titutes wnthout regard to use to which they intend to put house is void 54 Tex. 
388. Under general police powers lewd women may be prohibited from loiter- 
ing on the streets, 74 Ga.. 516', renting rooms to such persons may be regulated, 
14 La. Ann. 37, and sucii persons may be prohibited from waiting on customers 
in saloons and restaurants, 43 Mo. 48. But council can not decide that a house 
is kept for purposes of prostitution, nor order its demolition. 2 Doug. (Mich.) 
332. Knowingly associating with prostitutes can not be made an offense, 53 
Mo. 582 ; neither can walking with prostitutes, 4 Bull, 101. 

Sec. 3106. Animals running at large. Twenty-first. To regulate 
and prohibit the running at large of cattle, horses, swine, fowls, 
and other animals ; and to provide for the impounding, keeping, 
sale, and redemption of the same, when found in violation of the 
ordinance in such case provided. 

I. See clause 27. If a city keeps a pound in a bad condition, so that ani- 
mals Impounded therein are inuired, as by attempting^ on account of the low 
condition of the fence, to jump out, the city will be liable for such injuries. 



12/] GENERAL POWERS OF COUNCIL. [§ 3 I06 

The provisions of an ordinance for impounding stock must be strictly followed, 
74 Ind. 449; 104 Ind. 165. This clause is not affected bj the statute authorizing 
county commissioners to allow certain stock to run at large, 24 111. App. 591; 
106 111. 407. The city may declare that swine running at large is a nuisance, 
30 111. 459. The killing of a dog prohibited from running at large is not such 
an unauthorized proceeding as Avill create a liability for its loss, 3 111. App. 453. 
If a marshal employ an agent to kill dogs in pursuance of the terms of an or- 
dinance directing him to kill them, such marshal is not liable for the killing of 
a dog by the agent not within the provisions of the ordinance, 53 111. 117. To 
render a person liable to a penalty inflicted for allowing a dog to run at large, 
he must have participated in the act of suffering him to be at large, 63 111. 88; 58 
111. 221. The city can not authorize the sale of impounded property without 
a judicial finding that some law has been violated, 45 111. 218, 289; 44 111. 360. 
If a pound -master is sued for a conversion of an animal, he can justify his act 
only by showing his authority — as in the case of an officer acting under an exe- 
cution. He must show that the animal was in that situation which the ordi- 
nance has designated to authorize the seizure, 35 111. 417; 103 Ind. 13S; 114 Ind. 
387; 104 Ind. 165. 

2. The animal may be impounded and sold without inflicting a penalty on 
the owner for letting it run at large, 46 Ark. 296. It is immaterial Avhether the 
owner of the cattle reside in the city or not, 98 N,C. 44. Some notice of the 
seizure and proceedings to condemn the animal seized must be given to the 
owner under a provision in the ordinance authorizing it, or the ordinance will 
be void, 10 O. 32; 29 Miss. 247. Yet a notice of the date of sale will be a suffi- 
cient notice; because the owner can then bring an action of replevin to test the 
validity of the seizure, 3 Ired. (N. C.) L. 493; 63 Mo. 42; 6 Ired.(N. C.) L. 268; 
4 la, 296; 12 Kan. 263. Power to sell must be strictly pursued, or the sale will 
be void, and the officer a trespasser, 35 111. 417; 63 111. 50. Notice of sale may 
be either personal or by advertisement, 3 Ired. (N. C.) L. 493; 12 Kas.263; 8 B. 
Mon. 433; ID O.S. 32. What is running at large, 63 111. 88 {escaped horse)\ 21 
111.632 {zvithout ozuner's knovjledge)\ 12 John, 433 {dog folloxving master)\ 10 
Mete. (Mass.) 382; 53 la. 632 {horse -with bridle on). 

Sec. 3106. Eemoving noxious substances. Twenty-second. To pre- 
vent the deposit of any unwholesome substance within the city 
limits, and punish persons guilty of the same. And to remove or 
destroy putrid animal or vegetable matter, the common council 
shall have the right to collect the expenses of removing any such 
unwholesome substance, putrid animal or vegetable matter, from 
the person found guilty of a violation of the provisions of the ordi- 
nance of such city in relation thereto, with ten per cent, damages 
thereon and costs of suit therein. If the person occupying the 
premises fail to do so upon notice given, the common council 
shall have the power to remove such putrid animal or vegetable 
matter. 

1. This clause requires an ordinance to enable the city to avail itself of 
its provisions. 

2. The city can not authorize any one to remove dead animals and con- 
vert them to his own use, to the exclusion of the rights of the owner, 77 Mo. 
91. But the city may grant the exclusive privilege to an individual to re- 
move dead animals for a number (5) of years, due regard being had with 
reference to the owner's rights, 84 Ky. 290. For removal of garbage, see § 3--6. 

Sec. 3106. Ringing bells — Peddling- Twenty-tJiird. To regulate 
the ringing of bells and crying of goods, and to restrain hawking 
and peddling. 



§3io6] CITIES. [128 

1. A private action may be maintained to restrain the ringing o^ hells under 
certain circumstances, 133 Mass. 290; 146 Mass. 3:51; 9 E. L. & Eq. 104; 3 W. 
N. C. 384. 

2. Anj method of selling goods bj^ outcry on the streets or public places of 
a city, or by attracting persons to purchase goods exposed tor sale at such places 
by placards or signals, or by going from house to house selling, or offering 
goods for sale at retail, to individuals not dealers in such commodities, whether 
they be carried along for present delivery or the sales be made for future de- 
livery, constitutes the person so selling a hawker or peddler Avithin the mean- 
ing of the above clause. Any mode of selling goods which does not fall within 
the meaning of '•'• hazvking and feddliiig^^^ as above defined, can not be made 
unlawful by ordinance, 107 Ind. 502. This clause is valid, and a license may be 
exacted under it, 57 Ind. 74; but an ordinance requiring only those who are 
non-residents and who propose to sell goods not manufactured Avithin the 
county, to take out a license is inyalid, 107 Ind. 502. Nor can a city prohibit 
a citizen of another State from selling goods by sample when such goods are 
situated, at the time of the sale, in another State, but are to be delivered to 
the customer in this State. It is otherwise, perhaps, where the goods, at the 
time of the sale, are situated in this State, although the salesman resides in 
another State, 26 N. E. Rep. 185. The power to " restrain " confers the po^ver to 
exact a license, 7 Ind. 86; 57 Ind. 74. Hucksters defined, i O. S. 268. A state 
license does not prohibit the city also from exacting a license, 9 O. 290. Dele- 
gation of the power to grant a license to the mayor is unlawful, unless th^ 
legislature has authorized such a delegation of the power, 5 Bull. 73; 7 Bull. 50. 

Sec. 3106. Contagions diseases. Twcnty-foiirtJi. To remove or 
confine persons having infectious or pestilential diseases. 

See clause 33. Persons afflicted with contagious diseases may be required 
to remove to a pest-house or hospital, 18 Mo. 401 ; and nurses and phj-si- 
cians may be provided at public expense to care for and attend them, 59 N. 
H. 120. If a city erect a pest-house near the premises of an individual and 
render them unhealthj', so that their occupancy is unsafe or unpleasant, such 
city will be liable, 12 Heisk. (Tenn.) 684. The city is not liable for the miscon- 
duct of its agents and officers in charge of a pest-house, 17 Gratt. (Va.) 375; 
31 Ala.469; 9 La. Ann. 461; 44 Mo. 479; 21 Cal. 113; 35 Ind. 495, S.C. 14 Am. 
R. 499; 65 Me. 402, S. C. 20 Am. R. 709; 67 Me. 294; 33 Minn. 289; 120 Mass. 
432; 140 Mass. 13; 62 N.Y. 160; 103 Ind. 262. The city can not prohibit the 
sale or dealing in second-hand or cast-ofi" garments, on the ground that it 
tends to prevent the spread of diseases, 80 Ala. 579. 

Sec. 3106. Bills of mortality. Twenty -fifth. To regulate the 
keeping of bills of mortality, and to provide penalties for the neg- 
lect of any person in violation of the same. 

See board of health, § 4992. Bills of mortality is the common phrase to 
denote statistics of the dead. Harrison's Municp. Manual (Canada), p. 424 
(5 Ed). 

Sec. 3106. Water-works, Twcnty-sixtJi. To construct and estab- 
lish works for furnishing the city with wholesome water; and for 
the purpose of drainage of such city, may go beyond the city 
limits, and condemn lands and materials, and exercise full juris- 
diction and all the necessary power therefor. The common coun- 
cil may authorize any incorporated company or association to con- 
struct such works; and, in such case, the city may become part 
stockholder in any such company or association. 

I. For issuance of bonds, see §§ 31 14, 3265, for purchase of land, see clause 
45. This clause seems to be modifiied so far as it applies to cities of less than 
45,000 population building water-works, in that a vote of the city is necessary 



129] GENERAL POWERS OF COUNCIL. [§3I06 

to authorize their erection, § 3265; but so much of it as authorizes cities to 
allow companies to build, and even to take stock therein, is not repealed, 86 
Ind. 4S4. 

2. This clause does not authorize the issuance and sale of bonds for the 
erection of water-works, 63 Ind. 155. The cit}' may sell the stock it has taken, 
but its oi^cers can not give it away, 94 Ind. 305. Creating a debt beyond the 
constitutional limit, s^e 97 Ind. i, and § 220, noles. 

3. A bond given by a superintendent of water- works erected under this 
clause, where no ordinance requires it, for the faithful performance of his 
duties, is invalid, 92 Ind. 240. 

4. A city is liable for the acts of a contractor building water-works in the 
street for negligently killing a traveler who does not contribute to his own in- 
jury, 70 Ind. 65; 124 Mass. 564; L. R. 10 Q^ B. Div. 118. 

5. In order to erect works a city can not divert a stream of water, 24 Ala. 
130; 27 Ala. 104; 29 Ala. 127 ; 30 Ala. 363 ; 65 Pa. St. 444; 44 Conn. 521. The 
citv may bore artesian zvells, under its general power to preserve health, 31 Ala. 

6. After notice to city authorities that a service pipe placed in the street by 
private parties is leaking, and causing injury to premises of others than those 
who placed it in the street, city is liable, unless it use reasonable care to pre- 
vent the continuance of the injury, 18 Bull. 65. 

7. The city may adopt rules and regiilatiojis with respect to the supply of 
water where it owns the works; but the owner can not be denied the right to 
have water because his tenant in the building to be supplied has not paid his 
water-rent, 29 N.J. Eq. 77. 

8. If the grade of the street is changed, a water- works company may be 
compelled to lower its pipes so as to conform to the grade, 106 111. 337; or re- 
move them in order to build a sewer, 28 Fed. Rep. 921. Water-works pipes are 
not an additional burden on the fee of the streets, 33 Kan. 590; 13 N.J. Eq. 420; 
57 la. 560, but they are in a country highway, 27 N.J. Eq, 552. 

9. How far the grant of the right to a company to supply water n:iay be ex- 
clusive, sefe 115 U. S. 674; 35 La. Ann. mi; 34 Fed. Rep. 145; 28 Fed. Rep. 
921; 39 N.J. Eq. 367. 

10. The city is not liable for defective supply of water, beyond water rents, 
81 Pa. St. 38, S. C. 22 Am. Rep. 731; 123 Mass. 311, S. C. 25 Am. R. 90; 51 Ala. 
139; even though loss by fire is occasioned thereby, 28 W. Va. 233; 19 S.C.412. 
But the city is liable if it so permits the water to be used in the streets by its 
agents as to scare horses and cause them to run away, 11 R. I. 141, S. C. 23 Am. 
R. 434, or by negligence in the construction of the dam causing an injury by 
being swept away in a freshet, 2 Denio, 433; 3 Hill ( N. Y.) 531; or injures any 
one in their construction, 12 R. I. 449. Water-works can not be sold on an 
execution issued against a city, though owned by it, 105 U. S. 600. 

II. If the owner of a water-power stands by, and, not objecting, permits a 
city, without first assessing and paying his damages, erect water-works for a 
water supply by drawing water from the stream and thus diminishing his 
power, he will be estopped from afterwards bringing an action for an injunction, 
and must resort to an action at law, 99 Ind. 531. 

Sec. 3106. Public pounds. Twenty-seventh. To establish and 
regulate public pounds. 

See clause 21, votes. 

Sec. 3106. G-as. Twenty-eigJith. To construct and establish 
gas-works, or to regulate the establishment thereof by individuals 
or companies ; or to regulate the lighting of streets, public grounds, 
and buildings; and to provide, by ordinance, what part, if any, of 
the expense of lighting any street or alley shall be paid by the 
owners of lots fronting thereon, and in what manner the same shall 
9 



§ 3io6] CITIES. [13Q 

be assessed and collected, and to make the same a lien upon real 
estate. 

1. See 6 3162, for petition of abutting lot owners. 

2. For natural gas, see §§ 31 10, 3110a; electric light, § 3229c. 

3. Under this clause the citv maj enter into a contract with a company, to 
light the streets, for a long term of years (10) ; and may exercise such power, 
within the limits of its franchise, according to its own discretion. Such a con- 
tract is regarded as made by the city in the exercise of its power to contract, 
and not in the exercise of its power to legislate, although the power to make 
the contract be authorized by an ordinance. When, by the terms of the con- 
tract, the city is not restricted in any respect from the legitimate exercise of its 
public power touching the subject-matter thereof, but expressly reserves its ad- 
ministrative authority to keep the posts, lamps, and burners in good repair, if 
the company should "fail to do so; and also reserves the right to test the quality 
of the gas furnished by such company, and the capacity of the burners at all 
times; and is not restricted from extending its streets, establishing an additional 
number of lamps, obtaining gas from other sources or establishing its own gas- 
works, as the public interest may require ; such contract not being a restriction 
upon its legislative power, nor fraudulent, nor against public policy, is valid and 
binding upon such city, may be enforced in the same manner as the contract of 
a person or a business corporation, and can not be repealed, impaired, or 
changed by the city in any way, 66 Ind. 396; 31 Pa. St. 175, 185. 

4. The city can not assess the cost of gas-pipes and lamps upon adjacent 
property ; but only the cost of lighting the same after such pipes are laid and 
posts erected, viz., " the expense of lighting," 33 Ind. 258. 

5. Power must be expressly conferred in order to enable a municipal cor- 
poration to grant an exclusive right to a company to use the streets for laying 
down pipes for conveying gas for a term of years, 114 Ind. 332 ; 18 O. S. 262; 43 
O. S. 257; 28 Fed. Rep. 529; 44 la. 505. Where an exclusive right has been 
granted to a gas company to supply the town and people with gas, corpora- 
tion will not be restrained from authorizing another company to furnish 
light by electricity, 30 W. Va. 435, 28 Fed. Rep. 529 ; see 115 U. S. 650, 6S3, 674 ;. 

30 Barb. 24; 84 Ky. 167; 81 Ky. 263. 

6. Laying gas-pipes in a street is not an additional burden on the fee, 29 
Hun. 245 : 38 O. S. 44^; but it is if laid in a country road, 62 N. Y. 386 ; iii Pa. 
St 35, S. C. 2 Atl. Rep. 105. 

7. Without the consent of the city a gas company can not lay its pipes in 
the street, 114 Ind. 332. 

8. If a city owns its gas-works, it is liable, like a private compan}^ for the 
negligence of its servants and agents, 3 Hill (N. Y.) ^31, S. C. 2 Denio, 433; 

31 Pa. St. 175; 37 Eng. L. & Eq. 495, S. C. i H. & N. 59, 2 H. & N. 204: 122 
Mass. 344; 137 Mass 171. 

9. A permit to lay pipes in the street for artificial gas does not authorize 
their use for natural gas ; nor is a company organized to furnish artificial gas 
before the discovery of natural gas in this State, to a city which had laid pipes 
in the streets previous to the time of such discovery, authorized to supply 
natural gas, 2 Ohio C. C. 237. 

Resolution to Light. 

Be it resolved by the council of the city of that it is deemed necessary 

by the council to light street, from -^^ to , with gas [c/-. gasoline], 

and the gas company is hereby directed, under the supervision of the 

street commissioner, to at once erect "lamps on said street between the points 
aforesaid, :and supply gas [c^r, gasoline] thereto, in accordance with the terms of 
the contract betv,-een said company and this citv. 

Sec. 3106. Markets, councilmen may arrest. Tzuenty -ninth. To 
regulate the management of public property, markets, and market- 



131] GENERAL POWERS OF COUNCIL. [§ 3IO6 

Spaces, and sales of meats, fish, and vegetables ; to prevent, by or- 
dinance, the offense of regrating and forestalling ; to appoint market- 
masters, and to invest them with power to make arrests for the 
violation of city ordinances in their view; and to make council- 
men and all other city officers, conservators of the peace within 
such city, with power to arrest in like manner. 

1. See clauses 11, 33. 

2. Regulation of market permits prohibiting sale of fresh meat in less 
quantities than a quarter, except at market-houses, 7 la. 102; 25 Mo. 37; 11 Rich. 
S. C. 551 ; and sale of meat in any quantity, except at specified places, 10 Wend. 
100. Market limits may be prescribed, 44 Mo. 547; 25 Mo. 37; and opening of 
other markets prohibited, 31 La. Ann. 544. Occupant of stall, failing to pay 
rent in advance according to contract, is tenant at will, 11 la. 583. Huckster 
defined, i O. S. 268. See i Dill. Municip. Corp. § 386. 

3. Reo-rattfiff and forestalli7iff is a common law oft'ense, i East. 143. They 
apply only to the necessaries of life — food, 7 Moore N. C. 739; 18 Grant (Can.) 
540 ; 30 Up. Can. Q^ B. 92 ; 24 Up. Can. Q^ B. 238. 

4. The meat-inspecting law of 1889 (acts 1S89, p. 150; El. Sup. §§ 359 to 
361) has been declared unconstitutional, 126 Ind. 68. 

Sec. 3106. Protecting fire apparatus. Thirtieth. To regulate and 
protect fire engines, hose, hook and ladders. 

Sec. 3106. Weighing and measuring. Thirty-first. To regulate 

the selling, weighing, and measuring of hay, wood, coal, and other 

articles. 

Exposure of hay for sale without certificate of weight to show purchaser 
may be forbidden, 12 Wis. 752. Same of coal, 14 Wend. 87. Weighing may be 
made compulsory, 34 Ark. 603; 8 Ontario 71^0; 4 Ontario 401; 2 B. & S. 326; 5 
B. & S. 928; L. R. 3 Q^ B. 433; L. R. 8 Q^ B. 352. Office of weighmaster may 
be provided and his salary fixed, i Jones, N. C.L. 49 ; 14 Wend. 87. Use of 
spring scales may be prohibited, 30 U.C. Q^ B, 81. See 6 O. S. 604. 

Sec. 3106. Board of improvements. Thirty-second. To organize 
a board of public improvements, and empower such board to grant 
permits to build houses or additions thereto ; to prevent the erec- 
tion of wooden buildings in such parts of the city as the common 
council ma}^ determine; to condemn any building or structure 
liable to fall and endanger life or property, and provide for the 
removal and taking down of the same ; to take from all persons to 
whom such permit is granted, or with whom the city shall con- 
tract for any improvement liable to endanger persons or prop- 
erty, a bond with sufficient sureties, conditioned that the owners 
or contractors shall pay all damages that may be sustained by any 
person or persons by reason of any carelessness or negligence in 
the manner of making such improvements, and property from 
injuries thereby. 

See general welfare clause, § 3155 ; see 85 Ind, 276, and § 3106, clause 3. 
The city may enact an ordinance making it vmlawful to erect a building within 
the city without first making an application to the clerk of the board of public 
improvements, 105 Ind. 540. So it may provide for the summary removal of 
a wooden building that has become a nuisance by reason of the surrounding 
buildings; it may prescribe fire limits, and prevent the erection of wooden 
buildings therein, and may tear down, summarily, those that have become a 
nuisance; doing no unnecessary damage to the property, 100 Ind. 575, S.C.50 



§3io6] CITIES. [132 

Am. R. 830; 99 Pa. St. 306, S.C. 44 Am. R. 109; 2 Yeates (Pa.) 493; 98 111. 305, 
S. C. 38 Am. R. 89 ; 7 Conn. 349; 12 Me. 403. So an_y one may raze a house to 
the ground to prevent a conflagration, 39 la. 575, S.'C. 18 Am. R. 46 ; and the 
city may tear down a tenement house cut into small apartments, and calculated 
to 'breed disease, 15 Wend. 397 (see 16 Wall. 36). So the city may limit the 
amount of hay or stratv, even to five tons, that may be kept in a square, 85 Ind. 
276. See § 3155. Ordinances establishing fire limits are strictly construed in 
favor of the owners of buildings, 108 111. 414. All such ordinances are constitu- 
tional^ 73 Cal. 125; 117 Pa. St. 326. A city may even prevent laundry work in 
anything else than a stone ox. brick building, 68 Cal. 294; see 113 U. S. 27, 703; 
118 U. S. 356. But a court of equity wall not prevent the erection of wooden 
buildings within fire limits on application of the city; the remedy at law being 
deemed adequate, 33 Mich. 72, S.C. 20 Am. R, 671; 84 Ala. 126, 127. The owner 
of a Avooden building that he has a right to maintain wathin the fire limits, 
may move it from one place to another, within such limits. 

Ordinance to Prohibit Erection of Wooden Buildings. 

AN ORDINANCE, NO. , TO PROHIBIT THE ERECTION OF WOODEN BUILD- 
INGS ON THE SQUARE BOUNDED . 

Sec. I. Be it ordained by the council of the city of , that the erec- 
tion of any building or addition to any building, unless the outer walls thereof 
are made of iron, stone, brick, and mortar, or of some of them, is hereby pro- 
hibited upon the square bounded as follows: On the north by , etc. 

Sec. 2. This ordinance shall take effect, etc. 



Petition to Remove Building. 



Ind., , 18—. 



I, , city clerk of the city of , hereby certify that the follow- 
ing is a true copy of a certain petition and the action of the board of public im- 
provements and city civil engineer, now on file in my office, to wit: 

To the Board of Public Improvements and City Civil Engineer : 

The undersigned petitions your honorable board and engineer for the privi- 
lege to move a story building, by feet, over the following de- 
scribed route, to wit: . 

And your petitioner will ever pray. 



Petitioner. 



The vmdersigned, members of the board of public improvements and city 
civil engineer, do hereby grant the above petition, and recommend that the city 
clerk issue a permit in accordance therewith. 



City Civil Engineer. 



Board of Public Improvements. 



In witness whereof, I have hereunto set my hand and affixed the seal of 
said city, the day above written. 



[City Seal. 



City Clerk. 



Sec. 3106. Market, engine, and pest-houses. Thirty-third. To erect 
and establish market-houses and market-places, engine-houses, 
houses of refuge, pest-houses, and hospitals. 



133] GENERAL POWERS OF COUNCIL. [§ 3IO6 

1. See § 3106, clause 11, notes. When unlawful to erect a market-house on 
a street, without consent of property owners, § 3107; 34 N.J. L. 201 ; illegal 
erection may be enjoined, 29 Alb. L. J. 201 ; 6 Bull, 142 ; property for may be 
appropriated, 28 Hun. 515. 

2. See § 3106, clause 24, note. Purchase of real estate for sanitary purpose, 
§ 3ii5<T. The establishment of a market-house does not prevent the city from 
removing it to another place, or establishing the market elsewhere, 18 Oh. St. 
563; 3 Mod. 108; 3 East. 538; II App. Cas. 665; 21 L. T. N. S. 582; i B. & 
Al. 67. 

3. Under this clause a city can not exact a license of nor regulate the estab- 
lishment of private hospitals ; nor can it under the general welfare clause, 71 
Ind. 189. 

4. The city can not improve its property held for market purposes, at the 
expense of the owners of adjacent lots; and if it attempts to do so it may be 
enjoined, 106 Ind. 66. 

5. There are a number of Indiana cases in which it has been sought to en- 
force a mechanic s or material men's lien against city or town buildings; and in 
these cases it seems to have been conceded that this could have been done, 72 
Ind. iii; 58 Ind. 492; 57 Ind. 262; 51 Ind. 397; 46 Ind. 438; 76 Ind. 32; but 
since it has been decided that such a lien can not be enforced against county 
public property, because contrary to public policy, it may well be doubted if 
such a lien, properly contested, could be enforced, 100 Ind. 59; 86 Ind. 53i,S.C. 
44 Am. R. 338; 82 ind. 190; and it has been expressly decided that such a lien 
can not be enibrced against city public property, 71 N. Y. 498, S. C. 27 Am. R. 
80; nor against a city school-house, 102 Ind. 223 (overruling 17 Ind, 225.) 

Sec. 3106. Wharves, docks, piers, basins. Thirty -fourth. To es- 
tablish and construct wharves, docks, piers, and basins; and to 
regulate landing-places, and fix the rates of landing, wharfage, and 
dockage on all public grounds belonging to such city. All claims 
for landing, wharfage, and dockage, accruing to said city, shall be 
a lien upon the boat, vessel, or water-craft contracting the same ; 
and after a demand made by the wharf-master upon the owner or 
master, clerk, or consignee thereof, and refusal of payment, may 
be enforced by attachment before the mayor of said city, where 
the amount does not exceed one hundred dollars, in the same 
manner and to the same extent that liens on boats and other water- 
craft are now enforced under the general laws of this State, and all 
proceedings shall be conformable thereto as far as practicable. 
And the common council shall have power to compel property- 
ovv^ners owning any lots or parts of lots or lands bordering on any 
navigable stream, basin, or harbor, made so by nature or artificial 
means, to build and construct sea-walls for the protection of the 
banks thereof, in such manner as the common council by ordi- 
nance shall prescribe, provided such navigable water, harbor, or 
basin shall have been improved and used therefor. And for land- 
ing further up or beyond, and, if it be deemed necessary to pro- 
tect the banks of said stream, harbor, or basin along any such lot 
or part of a lot by sea-walls or otherwise, and upon the failure of 
such property-owners to make such sea-walls as shall be prescribed 
by such common council, the common council are hereby empow- 
ered to cause such sea-walls to be built by contract let to the low- 
est bidder; and the cost of constructing the same shall be a lien 



§3io6] CITIES. [134 



upon the property bordering upon such harbors, navigable streams, 
or basins, or deemed benefited by such improvement; and the 
Hen of the city shall be enforced in the same manner as provided 
now by law for the enforcement of liens for the improvement of 
streets and sidewalks: Provided, That thirty days' notice of the 
improvement to be made and the manner thereof shall be given to 
resident property-owners, by notice served by the city marshal, 
and by publication in the corporation newspaper four weeks to 
non-resident property-owners: Provided, That the owners of 
property affected shall have the same remedies by injunction and 
appeal that is now given by section seventy-one [§ 3165]; And 
pjwided, further. That four weeks' notice, by publication in the 
corporation newspaper shall be given by the common council of 
their intention to pass such ordinances. 

1. For construction of levees, see § 31511^. 

2, All powers of a city with respect to wharves must be derived from the 
legislature, 6 Ind. 237. A city m.ay build a wharf on property dedicated as a 
common along a river bank, 3 B. Ivlon. (Ky.) 183; 8 Dana (Ky.) 61. When a 
wharf is erected by the city, it must keep it in repair, or pay whatever damages 
any one may sustain that is injured, in the same manner as if he was injured by 
a defect in a street, 35 Ind. 19. The city can not charge the owner of a ferry 
with wharfage; the ownership of the ferry includes the right to use the soil for 
ferry purposes, 27 Ind. 100; 26 Ind. 193; 25 Ind. 283. A ferry boat is not a 
'• vehicle," and can not be taxed as such, 25 Ind. 283. The right of ferriage ma}' 
be lost by non-user. 35 Ind. 19. One using a wharf can not defeat a claim for 
wharfage by showing that it is not in repair, 35 Ind. 19. A claim for ferriage 
against a domestic vessel is not of admiralty jurisdiction, and maybe enforced 
in our own state courts, 35 Ind. 19. A city can not define the line of high- 
water mark, and declare that all buildings erected below it are a nuisance, 41 
Ind. 145. It is not necessary in order to enforce a lien on a boat for wharfage 
that the ordinance provide for the enforcement of the lien. When such a de- 
linquency occurs the city may proceed under § 5277 R. S. 1881, which fixes the 
lien, and have a judgment /;/ rem against the boat for the amount due. If the 
ordinance is authorized by this clause, the courts will not hold it invalid be- 
cause unreasonable, 112 Ind. 15. 

Sec. 3106. Board of health. Thirty-fifth. To establish a board 
of health, and to invest it with the necessary power to attain its 
object. 

1. Officers, how and when elected, 3098. Boards of health all now act 
in concert with the state board of health, 6 4993. If there is no board of health 
established by ordinance, the mayor and council act as such, under the control 
of the state board, § 4993. A board of health may be a board de facto, and its 
acts within its sphere of the office is valid, although the ordinance creating it is 
not legally passed, 29 Ohio St. 261. 

2. The city may require school children to be vaccinated; but can not make 
a contract for the work with a member of the board of health, 75 Ind. 156. The 
city, under this clause alone, may rent a temporary building for a hospital, 
especially in case of an epedemic. 18 Mo. 401. But the board of health may not 
alone of itself abate a tannery, 36 X. J. L. 283 ; nor prohibit the carrying on of 
a lawful business, 24 X.J. Eq. 169, with respect to the powers of such boards, 
see 4 C. B. (X. S.) ^76 ; 16 La. Ann. 317 ; 39 X. J. L. 122; 49 X. J. L. 391 ; 43 
Ala. 398; 78 111.405^; 8 AJlen, 325 2 Vt. 427; 6 Jones (X. C.) L. 134; 8 Fost 
(X. H.) 9; 15 W^end. 262, 397; iS Wend. 169; 9 Wend. 333; 6 Wend. 651 : 70 
N. Y. 530. Sale of milk from cows fed on improper food may be prohibited, 
43 Cal. 242, also adulterated milk, 73 X. Y. 65 ; 82 X. Y. 324. Wholesome 
water may be provided and its purity preserved, 28 Ga. 50; 31 Ala. 542. Def- 



135] GENERAL POWERS OF COUNCIL. [§3I06 

inition of slaughter-house, 25 Minn. 372 ; thej may be regulated, 65 Cal. 609, 
and may be restricted to certain specified parts of city, 37 N. Y. 661. Provision 
may be made ibr removal of bodies of dead animals, 42 N. Y. 140, and contract 
made ^vith an individual to do the work, 12 Bull. 41 ; 7. Mo. App. 345. Keeping 
hogs may be prohibited in populous districts, 68 Iowa, 107; 97 Mass. 221; also 
cattle, 72 Cal. 114. 

Form of Ordinance Establishing a Board of Health. 

AX ORDINAXCE, XO. , TO ESTABLISH A BOARD OF HEALTH. 

Sec. I. Be it ordained by the common council of the city of , that a 

board of health consisting of five members for the city of , be and the 

same is hereby established, and that said board shall be constituted and the ap- 
pointments thereto made by the mayor of said city. 

Sec. 2. That the board of health hereby established shall have power to 
make such orders and regulations as it may deem necessary for the public health 
and for the prevention of disease, and such orders and regulations shall have all 
the force and effect of ordinances of this city. 

Sec. 3. This ordinance shall take effect, etc. 



Notice to Abate Nuisance. 

OJice of Board of Health, City of , , 18—. 



To ; 

You are hereby notified that on the day of , 18 — , the 

board of health of said city adopted the following resolution: 
- '■'■Resolved, That in the opinion of the board of health of the city [(7r, vil- 
lage] of there exists upon the following premises [here describe as ac- 
curately as possible the premises^ a public nuisance, dangerous to life and health, 
consisting of \here describe the mcisance], and the agent, owner, occupant, or 
tenant of said premises is hereby ordered to abate the same, on or before the 
day of , 18 — , by [removing, altering, purifying, etc., in such man- 
ner as the board may direct], or the same will be done at the expense of the cor- 
poration and the costs and expenses thereof assessed upon said property, and 
the penalties prescribed by law for disobedience of this order will be enforced. 
And the clerk of this board is hereby directed to serve a copy of this resolution 
upon the agent, owner, occupant, or tenant of said premises." 

You will comply with said resolution within the time therein specified, or 
be subject to the penalties of the law. 

By order of the Board of Health, 



Clerk. 

Sec. 3106. Hack stands — B,ate3. Thirty-sixth. To establish 
stands for hackney coaches, cabs, and omnibuses ; to enforce the 
observance and use thereof; and fix the rates and prices for trans- 
portation of persons and property from one part of the city to an- 
other. 

See § 3106, clause 12, notes. Hack stands can not be so established as to in- 
terfere with the use of adjoining property; and the use of such stands mav be 
enjoined by the property owner, 39 O. S. 333; 41 Hun. 117; 7 Bull, 57. Rates 
may be established, 114 Mass. 328; 98 Mass. i. ' 

Sec. 3106. Hotel runners. Thirty-scventJi. To regulate or pro- 
hibit runners at wharves, steamboat-landings, railroad depots and 
stations, and other places. 

See 38 Mo. App. 609; 53 N. J. L. 180; 45 Hun. 41 ; 43 N. W. Rep. S33. 



§ 3io6] CITIES. [13^ 

Sec. 3106. Auctions. Thirty-eighth. To regulate the sale of 
all kinds of property at auction in the streets, stores, shops, or 
elsewhere in the city, and to license auctioneers, and require them 
to pay a reasonable per cent, on the amount of sales. 

Under this clause a citv mav adopt a penal ordinance requiring an auctioneer 
to take out a license, 63 Ind. 468 ; 124 111. 359. For definitions of " auctioneer," 
see 63 Ind. p. 473; 28 O. S. 479. An ordinance prohibiting auction sales after 
sun-down is void, because in restraint of trade, 24 Wis. 542; see 35 Hun. 209. 
A licensed auctioneer is not an otiicer nor an agent of the city, 3 Pet. 39S. 

Sec. 3106. Eates of travel. TJiirty-ninth. To regulate the 
speed of horses, carriages, locomotives, and other vehicles within 
the city. 

See § 3106, clause 17, and notes. For speed of locomotives and trains, see 
§ 3106, clause 42. 

SSG. 3106. Bridges, etc. Fortieth. To regulate all bridges, 
culverts, sewers, canal or draw bridges, and the location thereof; 
and to maintain, regulate, and collect tolls on any plank-road here- 
tofore built and abandoned by the owners in any such city. 

1. A city may purchase, condemn and appropriate for public use the shares 
of stock of any bridge companv owning a bridge within the city reaching across 
the boundary line of the State, acts 1SS9, p. 205 ; El. Suppl. 623. A city has 
exclusive power over the public bridges within its limits, §3161 ; 55 Ind. 255; 
119 Ind. 196. It is the duty of the city to keep all bridges within its limits, im- 
less toll-bridges run by private individuals or companies, in repair; and if it 
does not, and thereby any one is injured, the city is liable, even though such 
bridge is over the old Wabash and Erie Canal, 55 Ind. 250; 119 Ind. 196; 74 
Ind. 520. 

2. As to the liability of a city in the construction of a sewer, see the note 
appended to the beginning of this section (3106), and also note to clause 43 may 
be examined. 

3. A city may compel a railroad company to build a viadii.ct over its track 
v/here the travel is great, under its general powers without a special statute, 39 
Minn. 219. 

4. It is the duty of a city to keep a public bridge, within its limits and of 
which it takes control, in repair, even though such bridge may have been 
originally built and maintained by the county as a part of a public highway, and its 
failure to do so renders it liable to any one who suffers injury thereby without 
contributory negligence. By taking charge of and improving the highway, the 
city accepts and becomes charged Avith the maintenance of such a bridge, 119 
Ind. 196; 121 Ind. 379. But a bridge outside the corporate limits, connected 
with a free gravel road, and constructed by the county, does not, by the fact that 
it leads up to and adjoins a street at the corporation line of a city or town, be- 
come a city or town bridge in such a sense as to relieve the county from the 
general duty of using reasonable care to keej^it in a reasonably safe condition 
for passage. The city or town is excluded from the control of a bridge so 
situated, the right of control being vested in the county, 123 Ind. 379. It neces- 
sarily results that such city or town is not liable to any one injured by reason 
of a defect in such a bridge. A city is not bound to provide bridges strong 
enough for traction engi)ies, 26 N. E. 42. 

Sec. 3106. Party-walls and fencei. Forty-first. To regulate the 
building of party-walls and partition-fences within the limits of 
said city, and prescribe by ordinance in what proportion the ad- 
joining owners shall bear the expense of the same, and in what 
manner such expense shall be levied and collected, and define the 



13/] GENERAL POWERS OF COUNCIL. [§3I06 

terms upon which partition-walls and fences already constructed 
may be used by adjoining owners. 

1. This clause includes the power to authorize the erection of a party -wall 
or partition-fence upon the application of either owner, and without the con- 
sent of the other. Such an ordinance is not invalid because no compensation 
is provided for the land occupied by the wall or fence, 17 N. J. Eq. 208. The 
regulations must be strictlj followed, 4 B. & C. 269. See i D. & L. 116. An 
external wall is not always a party-wall from that fact alone, 14 L. T. (N. S.) 55. 
A partv-wall is a wall which belongs to two persons as part owners, or divides 
two buildings, one from another, L. R. 8 Ch. App. 1084. As to ownership and 
usage, see ^ Taunt. 20. See also L. R. ^ C. P.* 564; 15 Am, Rep. 475; 4 C. B. 
N. S. 5S4; S. C. 6 C. B. N. S. 606; L. R. 5 Q^ B. 443. 

2. One who sheds vv-ater from his buildings by means of spouts so as to throw 
it upon the lot of an adjoining lot owner is guilty of a trespass, and liable for 
the injuries thereby occasioned; and a continued discharge of such water for 
more than twenty years, merely by sufferance, without any assertion of right on 
the part of the owner of the building, creates no easement, 126 Ind. 85. 

Sec. 3106. Speed of railroad trains — Fiag-men. Forty-second. 
To regulate the speed of railroad' trains through the city; and also 
provide, by ordinance, for security of citizens and others from the 
running of trains through any city, and to require railroad corpo- 
rations to observe the same ; and also to require such corporations 
to keep clean the gutters and crossings of the streets along vv^hich 
their railways pass. 

1. An ordinance restricting the speed of a railroad train to four miles an 
hour while in the city is valid, 34 Ind. 392; 96 U. S. 521 ; 67 111. 113; 88 Mo. 672. 
Such an ordinance applies both to the platted and unplatted portions of the 
city, whether settled or not, 34 Ind. 392 ; 29 N. J. L. 170; and it matters not that 
the train is one carrying the United States mail, and if not allowed to run at a 
higher rate of speed, it could not keep its contract with the government, 34 Ind. 
392 ; 31 Minn. 402. The ordinance applies to switch-yards within its limits, 65 
la. 658. 

2. The city, hereunder, has the power to require the railroad company to 
maintain flagmen or gates and men to control them at places where it crosses 
the streets, and possibly even at alleys, most assuredly at public places, 100 Ind. 
210 ; 67 111. 37, S. C. 16 Am. R. 611 ; iii U. S. 228, contra, 45 Ohio St. 98. 

3. A city is not liable, however, for a failure to require the railroad company 
to maintain such a flagman or gate, 100 Ind. 210. 

Sec. 3106. Sewers, drains, and cisterns. Forty-third. To con- 
struct and regulate sewers, drains, and cisterns, and provide for 
the payment of the cost of constructing the same; to cause the 
same to be done by contract given to the best bidder, after adver- 
tising to receive proposals therefor. To provide for the estimate 
of the cost thereof, and the assessment of the same upon, the own- 
ers of such lots and lands as may be benefited thereby, in such 
equitable proportion as the common council miay deem just ; which 
estimate shall be a lien upon such lots and lands, and may be en- 
forced by sale of the same, in such manner as the common council 
may provide: Provided, hozvever, That not to exceed ten per cent, 
of the value of such lots or lands, as the same is valued and 
assessed upon the tax duplicate for state and county or city taxes, 
shall be assessed against such lot or lands in any one year. 



§3io6] CITIES. [138 

1. The power to construct a sewer is a continuing one\ and is not exhausted 
by the construction of one sewer, 45 N.J. L. 482; 100 Ind. 242, For a sewer 
tax in large cities, see § 3061. For liability of a city in negligently selecting a 
plan fcr sewers, see note at the beginning of this section (3106). The council 
may pay for a part of the sewer out of the general ficnd, § 3151; ^rid i-^-^aj con- 
struct one for surface or storm zvater, § 3151- Additional power to regulate 
sewers is given under § 3106, clause 40, which, however, may possibly refer to 
;private sewers. This clause is constitutional, 22 Ind. 491. Clause 51, § 3106, 
relates to the constuction oi private (^rfi-/??^ by one over the lot of another, 47 
Ind. 438. A sewer is not an additional burden on the easement of the street, 
79 Ind. 491; 28 Conn. 363; 29 N.J. Eq. 206; 28 N.J. Eq. 187, 446. 

2. The section that stood in place of § 3161 previous to 1867, conferred 
power to construct drains and sewers, 47 Ind. p. 440; but power to construct 
them was not given by the clause in that section as it was passed in that year, 
but was given by this clause. Under the law previous to 1867 the cost of a sewer 
could be assessed to adjacent property owners, even as against county property; 
and the same is true under the present law, 22 Ind. 491; 23 Ind. 381. Under 
the old law a general ordinance was, not necessary; but the improvement could 
be done under a resolution, 22 Ind. 491 ; 17 Ind. 175. The authority to construct 
sewers is general, and resides in all municipal corporations, 107 Ind. 75; it also 
comes within a city's control over its highways, 102 Ind. 372. The rcjieral 
drainage lazv applies to cities. Acts 1885, p. 130, § 2; El. Sup. § 1185. Previ- 
ous to 18S5 it did not, loi Ind. 539. The city can not by contract release its 
pozver to construct sewers, 91 Ind. 566. The sewer may extend beyond the 
city limits; and if the highv/ay is used the city is not liable in damages because 
of the increased burden on the easement, 79 Ind. 491. 

3. The assessment of benefits by the council is fnal^ and no appeal lies from 
its decision ; there is no power in any tribunal to reviev/ its action, nor to inter- 
fere, unless for fraud and corruption, 43 Ind. 197. But an appeal was allowed 
from a precept to enforce the cost of building a sewer, 65 Ind. 421; 47 Ind. 438. 
The assessments may be collected by precept, even one issued in favor of the 
city, if it has paid the assessment, 121 Ind. 331. 

4. The city is not bound to let out the building of a sewer by contract ; it 
may be constructed under the city olficers, 79 Ind. 491 ; 78 Ind. i (explaining 36 
Ind. 90). It may make a contract that the contractor take in payment city 
orders at par for that part charged to the city. The contract may also be 
changed, without impairing the right to collect the benefits, 22 Ind. 491. 

5. The city may contract, although it can not take land by the right of 
eminent domain, 4.7 Ind. 438 ; for the extension of a sewer through private prop- 
erty, I03 Ind. 372 ; 107 Ind. 75. And although the sewer be constructed accord- 
ing to the plans of the owner of such property, yet the city may be liable to 
any one else injured by reason of the faultiness in the plans, notwithstanding 
the fact that permission to cross such private property could not be secured 
only on the condition that the owner's plans be adopted, 107 Ind. 75. 

6. After a plan has been adopted and assessments of benefits made, the city 
can not change the plan nor extend the server without re-assessing all the lands 
benefited, 35 Ind. 97. 

7. The city must keep the sewer in repair, and notwithstanding the fact 
that it had been skillfully constructed it will be liable to any one injured by 
reason ot its not being kept in a proper condition, 107 Ind. 75; 67 Ind. 228. The 
city is chargeable with notice of its condition, 107 Ind. 75. 

8. The oictlet is a necessary part of it, and the city must provide one, w^hich 
must be constructed with ordinary care to escape damages, 107 Ind. 75. It 
may be outside the city limits; and the city may use a public highway, with- 
out giving damages to the abutting land-owner, in which to build the sewer, in 
order to reach an outlet, 79 Ind. 491. 

9. The city is liable to any one who taps the sewer for his own private 
benefit, for injuries resulting from the negligent construction or maintenance 
thereof, 107 Ind 75; but it is not liable to his tenant, even though such tenant, 
at the time he rented the property, had no knowledge of the defect in the sewer, 
52 Ind. 547. 



139] GENERAL POWERS OF COUNCIL. [§3I06 

10. In an action against the city for damages by reason of the city's neg- 
ligence in constructing the sewer, it is not necessary to prove that the ordi- 
nance directing the construction Avas regularly adopted; it is enough to show 
that the city had assumed to adopt it, and under it had constructed the sewer, 
107 Ind. 75. 

11. The city is not hotind to construct a sewer, unless it sees fit to do so ; and 
the courts will not compel it to build one, nor assess damages against it for 
failure to construct one, although the plaintiff has suffered great damages by 
reason of such failure, 107 Ind. 75 ; 79 Ind. 491, S. C. 41 Am. R. 618; 102 Ind. 
373- 

12. Damages arising from injuries occasioned by negligence in the con- 
struction of a sewer by the city are not a part of the expense of constructing the 
sewer, and can not be assessed against private property, but must be paid out 
of the general treasury, 102 Ind. 372. 

13. Under § 3151 the power of the city to construct sewers is so limited that 
it can only be done when necessary to remove svirface or storm water from the 
street, 121 Ind. p. 339. 

14. In a collateral attack upon the right of a city to enforce an assessment 
under this clause, Qvery prcstcniption \nl\ be taken in favor of the action of the 
city and its officers, and unless the complaint discloses a state of facts which 
show clearly that the assessments are void, their regularity will be presumed, 
121 Ind. 331. 

15. If the assessment exceed ten fer cent, of the assessed value of the prop- 
erty appearing upon the tax duplicate, it is void only as to the excess; and any 
one seeking to annul the assessment can not complain in a collateral proceed- 
ing until he has paid, or offered to pay, all except the excess, 121 Ind. 331. 

16. This section is not affected inany way by §3i65«. 'Y\\q. ordinance ox^qv- 
ing the construction need not be pjiblished. The contractors may be paid by 
the city and a levy for the amount of the assessments be made by installments. 
In such an event the assessment may be made for the benefit of the city and the 
precept issued in its name. The assessment is not made in accordance with the 
provisions of §3163. The benefits to property may be ascertained by a committee 
by its reporting them to the council, which adopts them as made, 121 Ind. 331. 

ADDITIONAL NOTE. 

17. Municipal corporations are liable for maintaining a nuisance, in the 
same manner as a natural person, no N. Y. 273; 30 Wis. 365. They are liable 
{or polluting a natural water-course with sewage, and may be enjoined from do- 
ing so, 4 Bull. 345; 2 Clev. Rep. 172; 2 Bull. 135; iioN.Y. 273. But the right 
to purity in a stream may be waived by abutting owners, if they permit and par- 
ticipate in the use thereof as a sewer, if an actual nuisance is not created, 9 Rec. 
731; 2 Disney, 400. But as to stcrface water, there is no obligation on the part 
of the municipality to take care of it, and consequently no right of action against 
it for failing to provide sewerage or drainage, 39 O. S. 665; 32 N. Y. 4S9; 4 Al- 
len, 41; 35 Pa. St, 324; 33 Ala. 116; 9 Kas. 603. There is no liability for defect 
in th.e plan of sewerage, the adoption thereof being quasi-judicial, 32 N.Y.4S9; 
4 Allen, 41; 34 Mich, 125; nor for deficiency in size of drains and sewers, pro- 
vided there is no accumulation of water that would not otherwise f^ow in that 
place, 32 N. Y.489, 8 Allen, 127; 13 Gray, 601; 9 Kas. 603. But if the corpora- 
tion by its drainage, whatever be the plan, collects together water which would 
not otherwise -lave flovN^ed in that place, and throws it upon private property, it 
is liable for the damage caused, 35 Mich. 296; 51 Mo. 510; 13 Wall. 16S; 41 111. 
502; 25 Wis. 223. Municipality is liable for not keeping sewers in repair. 4 Al- 
len, 41; 51 Mo. 510; 46 N. Y. 194; and also for negligence in constructing them, 
or removing obstructions therefrom, 66 N. Y. 295; 5a Ind. 5^7; p Mo. 510; 2'i O. 
S. 499; 2 C. S. C. R. 462. Where council has not prepared a system of sewerage 
and drainage, as provided in this section, the municipality has power, in the 
State of Ohio, to construct sewers, 40 O. S. 155, and in every such case eacii 
sewer is a main sewer, 2 Bull. 287. The adoption of a system of sewerage, and 
a plan for districting the city, can only be proved by the ordinances, and 



§3io6] CITIES. [140 

not bj the testimony of the city engineer, 2 Clev.Rep. 172; 4 Bull. 345. As to 
liability for failure to keep private sewer in repair, see 25 0.8,639. 

18. The selection of a proper outlet for a sewer is left to the discretion of the 
council, and will not be interfered with unless gross abuse is shown, i Oh. C.C.229, 

19. A wharf on which no buildings are to be erected is properly assessed 
for sew-erage, i C.S, C.R. 57. Where, in a sewer district, a sewer is placed in 
front of a lot and also in the rear in an alley, and the lot has but one improve- 
ment upon it, both the rear and the front can not be assessed, unless there is ac- 
tual drainage from both; neither will the assessment in the district be invali- 
dated by omitting the assessment on one of the frontages, 16 Bull. 287. \Vhere 
a lot has four frontages, and two are assessed, or is a corner lot and has been as- 
sessed for only a part of its frontage, such assessment will not be disturbed by 
the courts, 16 Bull. 287. It is no valid objection to an assessment that one part 
of a sewer costs more than another, and that therebj- the assessment on one 
street is higher than it would be if improved alone, i O. C.C.229. A lessee 
for ten years is not an " owner" within the section, and can not be personally 
charged with the cost of constructing a sewer, although his lease provides that 
the lessee shall pay all assessments, 36 O. S. 24. Neither is the owner of an or- 
dinary lease for years with privilege of purchase at a specified price, 2.C. S. C. 
R. 67. The assignee of a sewer assessment can not maintain an action thereon 
in his own name, but must sue in the name of the corporation, 2 C. S. C. R.296. 

20. A sewer constructed in the street by private parties, and hy them given 
to the city, is a public sewer, i Oh. C.C.501. 

An Ordinance for Sewer No. I. 

Sec. I. Be it craaincd by the Common Coiincil of the City of .• That 

a two-ring sewer be constructed in the center of Fourth street of said city, from 
the intersection of said Fourth and Broadway streets, extending south to the 
Wabash river; to be laid six feet below the surface of said Fourth street, to 
have an inner diameter thirty-six inches across, and to be constructed of hard- 
burnt brick, laid in Portland cement; the cost thereof to be assessed to the 
owners of lots abutting thereon, according to the whole length of said sewer, 
per running foot. 

Sec. 2. Said sewer shall be constructed under contract, to be let, after 
publication for three consecutive weeks in the Argus-Nervs of this city, to 
the lowest and best bidder, who shall give a bond for the faithful construc- 
tion thereof. The city civil engineer is hereby ordered to prepare plans and 
specifications for said sewer, and the clerk to advertise for bids for the con- 
struction of the same. 

Sec. 3. As soon as said contract is let, the city civil engineer shall ap- 
portion the cost, according to tue terms of this ordinance, among the several 
lots and tracts of land abutting upon said sewer, and report the same to this 
council; and as soon as the same is reported by him the city clerk shall issue 
a notice to the city marshal to serve upon each and evcry'person named in 
said report, containing the following, to Avit: That on the date of the passage 
of this ordinance said sewer was ordered, a description of its route, the name 
of the owner, and the description of his lot or tract of land, the amount it, 
each lot or tract, is assessed, with benefits or costs of said construction, set- 
ting a date at which the matter will be laid before this council for confirma- 
tion, accompanied with a request that if they have any objections thereto they 
shall lay the same before this council for consideration. The marshal shall 
forthwith serve said notice at least ten days before the day set for hearing, and 
if any one therein named is not a resident of this county ,"^ said notice shall be 
published for three consecutive weeks in t]xQ Argus -News of this city before 
said date. , 

Sec. 4. If, upon examination, the report of said engineer is found incor- 
rect, or for any cause the council may deem essential, it shall be referred back 
to him, at the meeting it is set for hearing, for correction in accordance with 
its directions, or the council may correct the same and equalize the assess- 
ments. 



141] GENERAL POWERS OF COUNCIL. [§3I06 

Sec. 5. After said report is confirmed, the clerk shall enter it at length in 
the proceedings of this council, and issue a copy thereof, stating Avhen it v,-as 
so confirmed, to the treasurer of this city, who shall proceed within sixty days 
to collect the same as benefits and costs are collected upon precept for street 
improvements. Provided^ That not to exceed ten per cent, of the value of 
said lots or lands, so assessed, as the same is valued and assessed upon the tax 
duplicate for city taxes, shall be assessed against said lots or lands in any one 
year. 

Sec. 6. This ordinance shall be in force from and after its passage. 



Notice to Contractors. 

Notice is hereby given that sealed proposals -will be received by the 
common council of the city of , at the office of the city clerk, on or be- 
fore 4 p. m., on the day of , 18 — , for the construction of a sewer 

in the center of Fourth street of said city, from the intersection of Fourth and 
Broadway streets, south to the Wabash river. All of said work to be done ac- 
cording to the provisions contained in the ordinance of the common council of 

said city, entitled "An ordinance for sewer No. i," adopted , 18 — , and 

according to the plans, maps, specifications, and profiles on file in the office of 
the civil engineer of said city. The contractor will be required to enter into a 
contract to do said work, and to furnish all material, and to provide a bond for 
the faithful performance of said work; and to complete said work within sixty 
days from the approval of the contract and bond. 

, iS , R. X. L., 

City Clerk. 



[At the time the bid is let these plans, specifications, and profiles should be 
in the engineer's office open to inspection.] 



Bid. 

To the Common Council of the City of ; 

Gentlemen: The undersigned proposes to build the sewer in the center 
of Fourth street of said city, from the intersection of Fourth and Broadway streets 
south to the Wabash river [including any and all work and material that may 
be necessary to connect the work done with the adjoining work], in a workman- 
like manner, and according to the plans, specifications, and profile on file in the 
offi-ce of the city civil engineer of said city, and according to the terms of 

ordinance No. i, entitled "An ordinance for a sewer," adopted , 18 — , 

and under the direction and to the entire satisfaction of the city civil engineer, 

for the sum of dollars and cents. Said w^ork to be completed 

within sixty days from the date of the acceptance of this bid. 



R. N., 
Contractor. 



Resolution of Acceptance, 



Resolved, That the bid of R,. N. for the building of the sewer in Fourth 
street be and the same is hereby accepted ; and the mayor is ordered to enter 
into a contract with him for said work, and to require a bond with proper security. 



Contract and Bond. 
[See forms, which can be modified, under § 3162.] 



3io6] 



CITIES. 



[h: 



Engineer's Apportionment of Cost. 



To the Common Coiuicil of the City of : 

I herebj^ report the apportionment of the cost of the construction of 
the sewer in the center of Fourth street of said city running from the intersec- 
tion of Broadway and Fourth streets south to the Wabash river, among the 
lots and tracts ofland abutting and fronting upon said sewer, according to the 
provisions of ordinance No. i,of said city, entitled "An ordinance for a sewer,"- 

adopted , i8 — . The entire length of said sewer is feet and 

inches ; and the entire cost dollars and cents. 

The following persons are the owners of the several lots and tracts of 
land described, which abut upon said sewer, in the number of feet given; and 
the amount stated is the amount assessed upon each said lot or tract of land, viz. : 



Name of Owner. 


No. of Lot. 


Addition. 


i-eet and Inches of 
Frontage. 


Amoimt 
Assessed. 


i 


Hcei. 1 i..!ehe=^. 


























■■' 






































Total 









R. L., 

City Civil Engineer. 



Notice to Lot Owners. 



Notice is hereby given to the persons herein named that on the 
, i8 — , the common council of the city of , county of - 



day of 

and State of Indiana, adopted an ordinance for the buildingof a sewer from the in- 
tersection of Fourth and Broadway streets of said city, south to the Wabash river, 
in the center of said Fourth street, the cost thereof to be paid for by assessing 
the abutting lot owners according to the whole length of said sewer per running 
foot ; that the following lots, within said city owned by the persons whose 
names are set opposite thereto, have been assessed in the sums given, to wit: 





Owner's Name. 


No. of Lot. 


Addition. 


Number of Feet and 
Inches of Frontag-e. 


Amount of Assess- 
ment. 




Feer, 1 Incnes. 


Dolhirs. 


Cents. 




































































Total 











Said persons will therefore take notice that at the regular meeting of the 
common council of said city held at 7 p. m. on day of , 18 — , at 



143] GENERAL POWERS OF COUNCIL. [§3I06 

the council chamber in the city hall, said assessment will come up for hearing 

and coniirmation ; and any and all of said persons will be then and there heard. 

In testimony whereof I have hereunto set my hand and the seal of said city 

this day of , i8 — . 

R. X. L., 
[City Seal.] Clerk of the City of . 

Marshal's Return. 

Served the within notice upon the persons therein named by giving 

them a certified copy thereof, this dav of i8 — . 

N. L., 
City Marshal. 
[The above notice can be published.] 



Clerk's Certificate. 



State of hidiana^ County of : 

I hereby certify that the above and foregoing report was duly approved 

and adopted by the common council of the city of , on the day of 

, i8 — ; that the lots and tracts of lands therein described were assessed by 

said 'council with the amounts set opposite each description therein named; 

and that the treasurer of said city was ordered to collect said amounts off of 

said lands as benefits and costs are collected by precept for street improvements. 

In testimony whereof I have hereunto set my hand and the seal of said city 

of , this day of , i8 — . 

R X L 

[City Seal.] Clerk of the City of — ^. 

[For procedure for collecting, see §§ 3165 and 3165a.] 



Journal Entry. 

Resolved by the common council of the city of , that the report 

of the city civil engineer, containing the apportionment of the costs for the con- 
struction of the sewer from the intersection of Broadway and Fourth streets, 
running south to the Wabash river, in the center of said Fourth ^reet, made to 

this council on the day of , 18 — , due notice of the pendency of 

which before this council has been given \.qx\ days to residents of this city by 
written notice served by the city marshal and issued by the clerk, and for tliree 
consecutive weeks to non-residents hy notice of the clerk of this city published 

in the Argus-Nevjs of this city, the first publication of which was on the 

day of ,18 — , and the last on the day of , 18 — , be and the 

same is hereby approved and ratified; and the several lots and tracts of land 
therein named and described are hereby assessed with the several amounts 
therein assessed to them, and said several amounts are herebj^ declared to be 
a lien on said several amounts as therein assessed; and the clerk of this city is 
ordered to issue to the treasurer thereof a certified copy of said report [as 
corrected by this council] with a certificate that the same has been fully ap- 
proved and the lands therein described assessed with the amounts named, who 
shall collect the amounts thereof as benefits and costs thereof are collected upon 
precept for street improvement. 

Sec. 3106. City prison. Forty-fourth. To erect a prison or pris- 
ons within the Hmits of sucli city. And it shall be lawful to im- 
prison therein persons convicted of offenses against the laws of 
such incorporation or for offenses against the penal laws of this 
State, and also persons charged with offenses punishable by indict- 



§3io6] CITIES. [144 

ment or presentment, temporarily, until they can conveniently be 
removed to the county jail. So far as the same may be applicable, 
the laws governing county jails shall be the laws of such city 
prison, and in all cases where the county jail is convenient, it niay 
be used for city purposes until a city prison shall be erected. 

1. See 6 3075 and notes for powers of citv marshal to confine in county jail, 
7 Ind. 614. For use of workhouse, see § 6237. 

2. This clause gives the city the exclusive right to determine the expedi- 
encv of the purchase, the pov/er to purchase or credit, and also to issue its 
negotiable bonds for the purchase money. vSuch purchase is not a loan within 
the prohibition of § 3159, 78 Ind. 192. 

Sec. 3106. Purchase of real estate. Forty-fifth. To purchase, 
hold, or convey real estate for the purpose of constructing pubHc 
buildings thereon, or using the same for a public park or other 
public purpose. And if designed for a public park, cemetery, 
water-works, or fair, such real estate may be purchased and held 
by such city, although lying without the limits of the corporation ; 
and such city may, by ordinance, provide for the protection thereof, 
and for the manner in which and the persons by w^hom the 
samie m.ay be used and occupied ; and any conveyance heretofore 
made of real estate by [to] any such city, for any of the purposes 
aforesaid, lying without the limits of such city, is hereby legalized 
and confirmed. 

1. A farh IS liable for its part of street improvements, § 3163. Purchase 
of a city infirmary is authorized, § 31 15. 

2. IManner in which sale of real estate can be made, 6 3106, clause 47, and 
§§ 3111 to 3113. 

3. Property may be taken on side of an avenue for a park, 48 Barb. 9. The 
legislature may constitutionally authorize a citj- to hold land ovitside its limits, 
99 N. Y. 569 ; but see 54 Mo. 458 ; nature of a city's ownership of a park situate 
outside of the city limits, 44 Mich 602 ; 68 Mo. 175. If a street runs through a 
public park, the council can not order it fenced up, 3 Oreg. 126; nor mav it 
fence up a railroad 63 Barb. 282 ; nor lay one out through it, 38 Mo. 363 ; nor a 
railroad, 53 N. Y. 574; 20 Hun. 201 ; i6"Pick. 87; S. P. 67 111. 540, without the 
assessment of damages. 

4. The words " Spencer Square " on a town plat does not imply a dedication 
of the square for a park, 8 Ind. 378 ; nor " Garden Square," 24 la 283 ; nor a 
square marked "Coliseum,"' 16 La. 509; 7 La. Ann. 49S ; meaning of the word 
"park," 36 N. Y. 120; use, 45 N. Y. 234. 

Sec. 3106. Shade-trees. Forty-sixth. To regulate the planting, 
maintaining, and protection of shade-trees along the streets and in 
public grounds; and compel the owners of lots bordering on any 
street, or part thereof, to plant, maintain, and protect such trees, 
and, on failure so to do, to cause the same to be done ; and the ex- 
pense thereof shall be a lien on such property and collected in the 
same m.anner as street improvements. 

I. The city may enforce the planting of shade-trees, 6 3229 and § 3229^. 
An ordinance imposing a penalty on any one mutilating a shade-tree in the 
street or a public park or place is not in conflict with the state law imposing a 
penalty on any one maliciously injuring the tree of another. Under such an 
ordinance it is not necessary to allege nor prove that the injury was malicious 



145] GENERAL POWERS OF COUNXIL. [§ 3IO6 

or -wanton, 37 Me. 329, Even the owner of the lot upon which the tree grows 
may be punished, if it is in the street or on the sidewalk. 37 Me. 329 {contra, 4 
Lans. (X. Y.) 136). Shade-trees upon the edge of street are not obstructions, 
46 la. 66. 

2 . In grading a street, shade-trees may be removed ; and if destro^yed, the lot- 
owner is not entitled to damages, imless they were killed through negligence 
or carelessness. 74 Ga. 164. The unlawful cutting down of shade-trees growing 
in the street Avill be enjoined, 19 N.J. Eq. 46; 18 N.J. Eq. 305, 313, §3229^7. 

3. But as against an individual, the owner of a lot may recover in an action 
of trespass against any one destroying trees in the street adjacent to such lot, 99 
Mass. 597; 97 Mass. 472. 

Sec. 3106. Sale of public square or landing. Forty-seventh. The 

common council of .any city may, upon the petition of a majority 
of the legal voters of such city, sell any public square or public 
landing of such city, or part thereof, and convey the same, by deed, 
under the hand of the mayor and seal of such city ; and any moneys 
arising from any such sale shall be deposited in the treasury of such 
city, to be expended in the purchase of any other public square or 
public landing and for the improvement of the same. 

Sections 31 11 to 31 13 possibly do not apply to public squares or landings. 
The action of the council in determining that a majority of the legal voters 
have signed the petition is conclusive, 15 Ind, 395, Without the petition a pub- 
lic square can not be sold; 16 Barb. 107. 

Petition to Sell. 

To the Common Council of the City of ; 

We, the undersigned, a majority of the legal voters of said city, ask 
your honorable body to sell the public square in said city, commonly known as 
" University Square," bounded by New York, Meridian, Vermont and Pennsyl- 
vania streets. 

Sec. 3106. Reports of school trustees. Forty-eighth. To compel 
the city school trustee or trustees to make a report to the com- 
mon council. 

This is in addition to the report to the board of county commissioners, 
§ 4441 - The duty of reporting may be enforced by a resolution or by a per- 
manent ordinance ; and such resolution or ordinance may specify what sub- 
jects the report shall be upon. 

Sec. 3106. Exemption of property. Forty-ninth. To exempt an 
amiount of real property owned by any resident householder of 
such city, not exceeding three hundred dollars in value, from sale 
for street improvements. 

Power of city to exempt, 2 S. C. 499; 33 la. 229. The city has no inherent 
power to grant exemption from taxation, 21 N. H.393; 75 Mo. 20S. This does 
not authorize the exemption of property from general taxation. 

Sec. 3106. Contempts. Fiftieth. To punish contempts and con- 
temptuous and disorderly demeanor in the council room. 

A disorderly person may be removed from the council chamber on the order 
of the maj'or when the council is sitting, 17 Wend. 522; or upon order of the 
council. The council possess only such powder to punish for contempt as is 
conferred by this statute, i P. C.App. 329; 3 P.C.App.560. 
10 



g§ 3106 3110^] CITIES. [146 

Sec. 3106. Drainage cf real estate. Fifty-first. To provide on 
what terms real estate in such city may be drained by means of 
surface or under drains over and across other real estate therein. 

This clause relates to the construction of drains by one land-owner over and 
across the lands of another, and not to the construction cf public sevrers, 47 
Ind. 438. -^ 



Sec. 3107. Market-houses, i. It shall be unlawful for the com- 
mon council of any city in the State of Indiana to erect upon any 
street of any city in said State any market-house, without having 
first obtained, in writing, the consent of two-thirds of all the owners 
of lots or parts of lots on such street, opposite to the place whereon 
such market-house is proposed to be constructed. 

Sec. 3108. Market-houses. 2. It shall be unlawful for such 
common council to maintain any market-house which now is or 
may be erected upon any street of any city in this State, without 
the written consent of two-thirds of all owners of the lots or parts 
of lots opposite the place where the same is erected. 

Sec. 3109. Market-houses — Nuisance. 3. Every market-house 
so erected or maintained without such consent of two-thirds of all 
the owners of the lots or parts of lots opposite to such market- 
house is hereby declared a nuisance ; and it shall be the duty of 
the common council of the city where such market-house is so 
erected to abate and remove the same; and if such common coun- 
cil shall fail to remove it, it shall be lawful for any owner of a lot 
or part of lot opposite to such market-house, to abate and remove 
the same, and he may, by proper action, recover of and from such 
common council the amount of money expended by him in and 
about the abatement and removal of the same. 

See § 3106, clauses ii, 29, and 33. 

[1881 S., p. 103. Approved and in force April 6, iSSi.] 

Sec. 3110. Pipes for heating, etc. i. The incorporated cities 
of this State are authorized, by ordinance or contract, to grant to 
any person or corporation the right to lay down pipes in their 
streets, lanes, alleys, thoroughfares, and public grounds, for the pur- 
pose of supplying the inhabitants thereof with steam, gas, or water 
for heating and motive power. 

See act concerning natural gas, § 3229// (acts 1SS7, p. 36, El. Sup. § 800), and 
§§ 3110a and 31101^. 

[i R. S. 1852, p. 358. Approved May 20, 1852, and in force May 6, 1853.] 

Sec. 3110(3:. Marine railways — Gas-pipes. 5. Corporations build- 
ing steam-boats and other vessels shall have the right to construct 
marine railways, and all other necessary fixtures and machinery for 
repairing and launching the same; and gas-light companies may 



14/] SALE OF REAL ESTATE. [§3IIO^ 3 1^3 

lay pipes through the streets and alleys of any incorporated city or 
town, by repairing- or making good any injury done thereto. [R. 
S. i88i, § 3856.] 

See §§ 3110, Siiol?, and 3229/^. 

[1SS3, p. 17. Approved and in force February 21, 1SS3.] 

Sec. 3110;^. Pipes and mains beyond city limits, i. Any gas- 
light or water-works company in any city or town of this State 
shall be authorized and empowered to extend their pipes and mains 
beyond the corporate limits of such city or town, not to exceed a 
distance of five miles from the corporate limits of any such city or 
town, for the purpose of supplying persons or corporations with 
gas or water, and any such company shall be authorized and em- 
powered to furnish and supply gas or water to any persons or cor- 
porations residing or located within five miles of the corporate 
limits of any such city or town, [El. Sup. § 1014.] 

See § 3110, 3110^;, and 3229/^. 

[1S73, p. 62. Approved and in force March 7, 1873.] 

Sec, 3111. Selling real estate, i. Any city or cities incorporated 
under any general law of this State for the incorporation of cities, 
and owning real estate, shall have power to alienate, sell, and con- 
vey such real estate in whole or in parcels, as the common councils 
of such city or cities may deem expedient. 

I. If the corporation holds the full title to property for public use, with- 
out restriction, the legislature may authorize its sale, 4 Pet. 232; 3 Lans. (N. 
Y.) 429; 45 N. Y. 234. But if title has been acquired for specific and limited 
purposes, the legislature can not authorize its sale as against the objection of 
the person who owns the reversion, 18 O. S. 221; 22 la. 351 ; or other vested 
private interest therein, 9 Kas. 453. A city clerk duly authorized by council 
to convey property under seal of the corporation, can not convey the title of 
the corporation under his official seal, 43 O. S. 178. City which has no board 
of improvements can authorize sale of property without the recommendation 
provided for in the section, 26 O. S. 619. Property owned and held for munic- 
ipal purposes can not be sold on execution, even when not in actual use, 4 
Bull. 77. 

Sec. 3112. Vote necessary — Deed. 2. Such alienation, sale, and 
conveyance shall be made by the common council of such city or 
cities by a vote of two-thirds of all the members of such common 
council. When any alienation and sale shall be made by such com- 
mon council, they shall order and direct the mayor of such city to 
execute and deliver a deed of conveyance to the purchaser, which 
shall be in the usual form, and shall be executed in the name 
of such city and signed by the mayor in his official capacity, and 
sealed with the seal of the city ; and, when thus executed, acknowl- 
edged, and delivered, shall convey all the right, title, and interest 
of the city in and to the premises so conveyed. 

Sec. 3113. Appraisement. 3. No such property shall be sold un- 
til the same has been appraised by three disinterested freeholders 
of such city, to be appointed by the judge of the circuit court of 



§3113] CITIES. [148 

the county in which such city may be situated, neither of whom 
shall be members of the city council or officers or employes of such 
city. Said appraisers shall be first sworn to make a just and true 
valuation of such property, and shall return their appraisement, in 
writing, to the mayor or common council of such city ; and no such 
property shall be sold for less than the full appraised value thereof 

Sales under these sections ^vere legalized in 1S85, acts 1885, p, 108 ; El. 
Suppl. 688. See § 3106, clauses 45 and 47, and notes. The council should re- 
quest the judge of the circuit court to make the appointment; the appraisement 
should be returned, and then the land ordered sold and a deed executed. 

Request for the Appointment of Appraisers. 

Resolved by this common council that the judge of the circuit 

court is hereby requested to appoint three disinterested freeholders of this 
cit}^ for the appraisement of the following described real estate, owned by this 
city, situate in the county of , and State of Indiana, viz.: Lot 13 of Gib- 
son's addition to the city of , with the view of selling the same. 

[Certified copy should be laid by the clerk before the judge.] 

Order of Appointment. 

In pursuance of the request of the common council of the city of , 

of the State of Indiana, adopted on the day of , 18 — , I hereby ap- 
point A. B., C. D., and E. F. to appraise lot No. 13 of Gibson's addition to said 
city, and make return thereof to the mayor or common council thereof. 

G. H., 

Judge of the Circuit Court. 

[This appointment need not be spread of record in the circuit court, it being 
only the act of the judge.] 

Oath of Appraisers and Appraisement. 

State of Indiana, County of , .9.?; 

We, A. B., C. D., and E. P., do solemnly swear that we will make a 

just and true valuation of lot No. 13 of Gibson's addition to the city of , 

county of , and State of Indiana. So help us God. 

A. B., 
C.D., 
E. F. 

Subscribed and sworn to before me this day of , iS — . 

H. I., 

[Notarial Seal.] Notary Public. 

We, the undersigned, appraisers appointed by the judge of the circuit 

court to appraise lot No. 13 of Gibson's addition to the city of , county 

of , and State of Indiana, do hereby appraise and fix the true value thereof 

at dollars. 

A. B., 
CD., 
E. F. 
Order of Sale. 

Resolved that this city of sell and convey by warranty deed lot 

No. 13 of Gibson's addition to said city, county of , and State of Indiana, 

to L. X., for the sum of dollars ; and the mayor is hereby ordered, directed 

and authorized to execute and deliver to said L. X., upon the payment of said 
sum of money, a sufficient deed therefor; and this shall be a sufficient authority 
to him in said premises. 



149] WATER-WORKS AND CITY INFIRMARY. [§§3114,3115 

Deed. 

This indenture witnesseth: That the city of , in the county of 

, and State of Indiana, in pursuance of a resolution of the common coun- 
cil of said city adopted on the day of , 18 — , and entered in journal 

record number , on page , conve^-s and warrants to , of the 

county of , and State of , for the sum of dollars, the following 

described real estate situate in the county of , and State of Indiana, viz.: 

S^D escribe /7.] 

In witness whereof I have hereunto set mv name as mayor of said city, 

and affixed the seal thereof, this day of , 18 — . 

[City Seal.] ^ A. B., 

Mavor of the Citv of . 



State of I?idia?ia, County of , jt.t; 

Personally appeared before me, A. B., mayor of the city of , of 

the State of Indiana, and acknowledged the execution of the above and fore- 
going deed, executed in behalf of said city. 

In testimony whereof I have hereunto set mv hand, and official seal, this 
day of , 18 — . 

[Seal.] C. D., 

Notary Public. 
[1S73, p. 63. Approved and in force March 7, 1873.] 

Sec. 3114. Water-works, i. The common council of any city 
engaged in establishing and constructing water-works for furnish- 
ing such city with wholesome water, may, by a vote of two-thirds 
of the members of such council, at any regular or adjourned meet- 
ing thereof, issue the bonds of such city, payable at such times as 
the common council may direct, and bearing interest at any rate 
not exceeding ten per cent., and may negotiate the same upon the 
best terms they can obtain, not less than ninety-seven cents on the 
dollar; and the proceeds of such bonds shall be applied only to the 
construction of said water- works. 

See § 3106, clause 26, notes; and § 3265, concerning water-works companies. 
If the treasurer squanders the money received, this does not prevent a new 
issue of bonds for the same purpose for which the old bonds were issued, if the 
constitutional limitation is not exceeded, 49 Ind. 169. 

[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3115. Infirmary for poor. 55. The city council shall have 
power to erect, establish, maintain, and regulate an infirmary for 
the S-Ccommodation of the poor of said city, either within the limits 
of such city or within the county in which it may be situated ; 
and, for such purpose, m.ay purchase and hold any real estate that 
may be deemed necessary. The management and government of 
any such infirmary, and the quantity of out-door relief to the poor, 
under such rules and regulations as the council may prescribe, may 
be vested in a board of three directors, to be elected by the 
city council, who shall hold their office for the term of three 
years ; but it shall be so provided that one of said directors shall 
be elected annually. The city council may elect, or the said 
directors shall appoint, an overseer in each ward, who shall per- 



§§ 3115^— 3iiS] CITIES. [150 

form such duties in respect to the care of the poor and their re- 
moval to said infirmary, as the council may prescribe. 

City hospital, see § 3106, clause 33. That a citj- maj receive a gift for the 
benefit of its poor, see 2 Dillon, Municipal Corporations, §§ 566 to 572, and i 
Rawle (Pa.) 170; 102 Ind. p. 377. 

[1885, p. 94. Approved and in force March 17, 1885.] 

Sec. S115a. City may purchase real estate for sanitary purposes. 
I. It shall be lawful for incorporated cities in this State to pur- 
chase and hold real estate without the limits thereof for sanitary 
purposes ; and any conveyance heretofore made of real estate to any 
such city for any such purpose, within or without the limits of any 
such city, together with any and all bonds and obligations issued 
in payment therefor, or to raise revenue with which to pay there- 
for, are hereby legalized. [EL Sup. § 686.] 

[1S73, p. 64. Approved and in force March 10, 1873.] 

Sec. 3116. Large cities may borrow money, i. Any incorpo- 
rated city of this State containing a population of fifteen "thousand 
or over, may borrow money to an amount not exceeding two per 
cent, of the taxable property of such city, as the same shall appear 
upon the tax duplicates of such city for the year in which such 
loan may be effected : And provided, That the entire money bor- 
rowed shall not, at any time, exceed two per cent, of the taxable 
property of such city. 

Touching the constitutional limitation, see § 220, notes. Temporarj^ loans 
for school purposes bv cities having 3,000 inhabitants, § 4464. 

Sec. 3117. Purpose of loan. 2. Such loans shall be made only 
for the purpose of procuring money to be used in the legitimate 
exercise of the corporate powers of such city, as the same are pre- 
scribed and defined in laws providing for the incorporation and 
government of cities: And provided, That nothing in this act con- 
tained shall be in anywise construed as authorizing any city to 
contract any debt or liability for any other than a legitimate cor- 
porate purpose ; but such loans may be made to procure money 
to pay debts already contracted in the due exercise of corporate 
powers conferred by the laws of the State. 

Sec. 3118. Ordinance for loan. 3. The city assessor, city clerk, 
and city treasurer shall, before any such bonds are ordered to be 
issued, join in an affidavit, stating therein the total value of the tax- 
able property of such city, as shown by the tax duplicate, and also 
the fair valuation thereof; which affidavit shall be reported by the 
city clerk to the common council of such city. The common coun- 
cil shall, thereupon, cause an ordinance to be introduced, providing 
for such loan; and the said ordinance shall be, thereupon referred 
to such committee as the common council may deem proper; and 
said committee of such council shall, at the next regular meeting 



151] LOANS AND FUNDING BONDS. [§3119 

of such common council, report such ordinance to the common 
council, with such recommendations as they may deem expedient. 
If the common council determine, by a two-thirds vote of all the 
memibers thereof, to make such loan (which determination shall 
be evidenced by the passage of such ordinance), the mayor of such 
city shall order and direct the requisite number of blank bonds to 
be prepared; and these he shall sign and deliver to the city clerk, 
taking his receipt therefor ; and the city clerk shall countersign the 
same, and attach the corporate seal thereto, and deliver them to the 
city treasurer, and shall take from such treasurer a receipt for such 
bonds ; and in such receipt shall be particularly described the said 
bondsoas to date, number, amount, and time of payment. The 
bonds so received by such treasurer shall be, by him, safely kept; 
and, at the next meeting of the common council, he shall report 
the receipt thereof to that body. Upon the report of such treas- 
urer, the common council may authorize a committee thereof to 
negotiate a sale of said bonds, of which committee the treasurer 
shall be a member, and all moneys received from the sale of such 
bonds shall be, by such treasurer, received and kept, to be paid out 
under the order and direction of the common council as money 
derived from other sources is directed by law to be paid out. And 
such treasurer shall, in a proper book, register said bonds, note the 
day of sale thereof, the moneys realized therefrom, and, at all times, 
keep a plain, correct, and fair account of such transaction, so that 
the same may be readily understood; and shall at all timacs keep 
the same open and accessible to the public. It shall be the duty of 
the treasurer, within one week after the negotiation of such bonds, 
to report the same to the common council, stating all the particu- 
lars of such transaction ; which report the said treasurer shall duly 
verify by oath or affirmation. The said treasurer shall faithfully pay 
over and account for all moneys by him received from the sale of 
such bonds. 

Sec. 3119. Interest — Sale of bonds. 4. The common council 
may provide the rate of interest, not exceeding ten per cent, per 
annum, which said bond shall bear, and may prescribe the time and 
manner in which said bonds and interest may be payable: Pro- 
vided, That no bonds shall be issued payable at a period of more 
than twenty years: And provided, That at no time shall there be 
outstanding of such bonds an amount in excess of two per cent. 
of the taxable property of such city. The common council shall 
have power to dispose of said bonds as hereinbefore provided ; but 
the same shall in no case be sold at less than par. The committee 
of the common council appointed to seU said bonds, as hereinbe- 
fore provided, shall, upon the sale thereof, report to the common 
council the date of sale, the amount sold for, and the disposition 
of the proceeds of such sale or sales. The committee shall cause 
a publication to be made, for such time as they may deem proper, 
in a newspaper of general circulation, inviting proposals for such 



§3119] CITIES. [152 

bonds, and shall sell the same to the highest and best bidder, pro- 
vided the same shall not be sold at a less rate than that hereinbe- 
fore prescribed. 

1. Where the fund realized by the sale of bonds was squandered by the 
treasurer, it was held that other bonds could be issued to supply the deficiency, 
49 Ind. 169. Unless authorized to issue bonds, a city can not do so, 5 Ind. 38; 
but if authorized to borrow money, it may sell bonds for that purpose, 29 Ind. 
305; see 9 Ind. 74. 

2. Povjer to issue bonds. Under the classification of municipal corporations, 
a law which confers the power to issue bonds upon a municipality by name, or 
such other designation, that it does not and can not apply to any other corpora- 
tion, is a special act conferring corporate power, and is, therefore, unconstitu- 
tional, 31 O. S. 592; 44 0.8,247; 13 Bull. 614; 8 Neb. 178; 103 U. S. 707; 2 
Dillon, 353. The issue of bonds under such an act may be enjoined at the 
suit of a tax-payer, 13 Bull. 614; the levy of a tax to pay the interest on such 
bonds may be enjoined at the suit of a tax-payer, 92 111. 24; and the bonds are 
void in the hands of an innocent purchaser for value before maturity, 44 la. 88; 
55 Miss. 115. 

3. Formalities of issue. Form of bond is not material, unless the form is 
prescribed by law, in which case that form should be used, loi U.S. 693. If they 
can only be issued after certain majority has voted therefor, the majority is de- 
termined by those voting on that question, 16 Wall. 644; 95 U. S. 360; iii U. 
S- 556; 37 Mo. 270. Of a board of three, two may lawfully issue bonds, 24 How. 
435. Signatures to coupons need not be written, 48 Cal. 565; 3 Dill. 210; 99 U. 
S. 118. Omission of seal will not invalidate bonds in hands o( bona JideYiolder., 
96 U. S. 312 ; 109 U. S. 341 ; 104 U. S. 504. They may be miade payable beyond 
the limits of the State, unless statute prohibits, 16 Wall. 6. 

4. Rights of bona fide holders. If the act conferring power to issue bonds 
is in conflict with the constitution, the bonds are void, even in the hands of a 
bona fide holder for value, 92 U. S. 569, 625; 106 U. S. 487; 114 U. S. 120; 22 
How. 364; 61 111. 99; 92 111.24; 55 Miss. 115; 44 la. 88. But if power is con- 
ferred, a defective execution of the power will not avail to avoid the bonds in 
the hands of an innocent holder, 27 O. S. 96; 37 O. S. 526; 16 Wall. 644; 97 U. 
S. 96. And if the municipality could have had power under any circumstances to 
issue the bonds, the bona fide holder has the right to presume that they were 
issued under the circumstances which gave the authority, 96 U. S. 312; 5 Wall. 
772; 22 Ind. 88; 52 Ind. 563; 123 Ind. 41. If the bonds recite on their face that 
they are issued in pursuance of an act of the law-making power, the corpora- 
tion can not show that the necessary steps have not been taken, 27 O. S. 96; 
no U. S. 608; 106 U. S. 183. Or, if a condition precedent to their issue is an- 
nexed by the law conferring the power, and they recite a compliance, the cor- 
poration will not be allowed to show a want of compliance as against an inno- 
cent holder {petition of freeholders), 37 O. S. 526; 2 Black, 722; {popular vote), 
21 How. 539; {election tipon notice), 92 U. S. 642; {asseiit of tax-payers). 92 U. 
S. 494; {limit to amount of issue), 92 U. S. 637. See also 33 How. 364; 10 Wall. 
676; 14 O. S. 260. But in the absence of such recital, the facts may be shown, 
III U. S. 556. Municipality may also be estopped to deny regularity of :ssue 
by its own acts, as receiving stocks for its bonds, which it holds and from which 
it accepts benefits for several j^ears, 94 U. S. 202; or where it fails to enjoin the 
issue and pays interest thereon for ten j^ears, 113 U. S. 227. But recitals and 
acts operating by way of estoppel cure irregularities onlj^; they can not create 
power, 114U.S.120. Corporations maj' plead the statute of limitations inactions 
against them on their bonds, 4 Tex. 470. Coupons are negotiable, and holder 
may sue thereon in his own name, without producing or being interested in the 
bonds to which they were originally attached, 3 Wall. 327; 2 Wall, no; 24 111. 
75. Satute of limitations begins to run on coupons from date of their maturity, 
whether attached to, 98 U. S. 470, or detached from bond, 20 Wall. 583. Stolen 
bonds or coupons are good in the hands of an innocent purchaser for value be- 
fore maturity, 66 N. Y. 14; 15 Cal. 336; 102 Mass. 503; and this, although the 
number is changed by the thief, 29 N. J. Eq. 587; 29 N. Y. 220; or the name of 
payee isanserted in blankleft for that' purpose, 38 N.J, L. 146; i Hun. 675, But 



153] LOANS AND FUNDING BONDS. [§ 31 I9 

where any essential part of bond is incomplete Avhen stolen, and is filled in by 
the thief, or person holding under the thiei', no recovery can be had {place of pay- 
ment), ^'^ N.Y.307; 2 Woods, 141; {seal a7id ejidorscmeiit)^ 11 Hun. 8. Coupons 
are entitled to days of grace, and stolen coupons purchased Avithin the three 
days are purchased before maturity, 66 N. Y, 14. Pendency of suit to enjoin 
the issue and delivery of bonds Avill not affect the title of a ^<9«rt_/?We purchaser, 
not a party to the suit, 97 U. S. 96; iii U. S. 556. 

5. Coupons may have facsimile of name of officer stamped thereon, in 
place of written signature, 48 Cal. 565; 3 Dill. 210. Bonds sold at less than par 
value are void in the hands of the purchaser from the city, but not in the hands 
of one buying from such purchaser without knowledge that they had been sold 
at less than par, 27 O. S. 96. 

6. If made payable tobearer they are negotiable as inland bills of exchange, 
and are only payable after they are due, upon presentation at the oflace of city 
treasurer, or at the place where they are made payable. They are governed by 
the law merchant. If the bonds are /f.^/ before maturity, it may be so averred, 
and a recovery had, if the plaintiff offers and tenders in court an approved bond, 
123 Ind. 41; loi Mass. 370. 

7. Omission of seal Avill not invalidate a bond in the hands of an innocent 
holder for value, 96 U. S. 312; 104 U. S. 501; 100 U. S. 341. 

Council's Request for an Affidavit. 

The cit\' clerk, and city treasurer is hereby requested to prepare and 
lay before this council an affidavit showing the total value of the taxable 
property of this city, as shown by the tax duplicate and also the fair valuation 
thtfi-oof. 

Affidavit. 

State of Indiana^ County of .?.?; 

We, C. D., clerk, and E. F., treasurer, of the city of , in said 

county and State, in pursuance of the request of the common council of said 
city, upon our oaths state that the total value of the taxable property of said 

city, as shown by the tax duplicate thereof, is dollars; and that a fair 

valuation of such property is dollars. 

C. D., 
E. F. 

Subscribed and sworn to before me this day of , iS — . 

H. L., 
[Notarial Seal.] Notary Public. 

[Since there is now no city assessor, the affidavit of the clerk and treasurer is 
sufficient.] 

Journal Entry. 

Comes now C. D., city clerk, and E. F., city treasurer, and files an 
affidavit showing that the total value of the taxable property of this city, as 

shown by the tax duplicate thereof, is dollars, and that the fair valuation 

of said property is dollars ; and thereupon an ordinance for procuring 

a loan and issuing dollars of bonds is presented by the city attorney and 

introduced by order of the council and by it referred to the committee on 
finance. 

Ordinance. 

ORDINANCE AUTHORIZING THE BORROWING OF DOLLARS. AND 

SALE OF BONDS THEREFOR. 

Sec. I. Be it ordained by the common council of the city of , that 

said city borrow the sum of dollars. 



§3119] CITIES. [154 

Sec. 2. That in order to procure said loan the bonds of said city be issued 
to the amount of dollars, in denomination of dollars each, bear- 
ing interest, payable annually, eyidenced by a coupon for each year's in- 
terest, signed by the mayor and countersigned by the clerk of said city, and 

sealed y-ith the seal of said city, one-fourth of ^yhich shall becom.e due in 

years, one-fourth in years, one-fourth in years, and the remainder in 

3- ears. 

Sec, 3. This ordinance shall be in force from and after its passage. 

Report of Finance Committee. 

We, the undersigned, the committee on finance, to ^yhom \yas referred 

by the common council an ordinance for procuring a loan of dollars, and 

for the issuing of bonds to secure the same, respectfully report back said ordi- 
nance ^yith the recommendation that it be adopted by the council. 

X. Y., 
L. Q^, 
R. S. 
Journa! Entry. 

Upon the call for reports of committees, the committee on finance re- 
port to the council as follo\ys, yiz.: [Se^ out the report above], and thereupon, 
on the motion of L. U., the following ordinance \vas adopted by a two-thirds 
yote of all the members of the council yiz.. [Set out the ordinance in full, or 
Ayords may he used fully ide7itifying it, ajid thus dispensing zuith settijig it 
out.] Those yoting in fayor of the adoption of said ordinance were [set out 
the names and mimher] ; those against its adoption were \set out the names 
and number], whereupon it was declared by the mayor that said ordinance 
was adopted, 

ISio. . 



Form of Municipal Bond. 



City of ■ 



The city of , of the State of Indiana, hereby acknowledges itself 

indebted to and promises to pay or bearer, the sum of dollars, on 

the day of , 18 — , with interest thereon at the rate of per 

cent, per annum, payable annually, on the days of of each year 

and the presentation and surrender of the annexed coupons, as they seyerally 
become due. [Proyided, that the priyilege is hereby reseryed to said city of 

to redeem this bond at any time after the day of , 18 — , 

and if so redeemed interest shall cease thereon after the date of redemption.] 

Both principal and interest are payable at . This bond is issued, and all 

proceedings relating thereto haye been had in strict compliance with an act of 
the general assembly of the State of Indiana, passed on the loth day of March, 
1873, entitled "An act authorizing incorporated cities containing a popula- 
tion of fifteen thousand to make loans, and prescribing rules and regulations 
concerning the borrowing of money by such cities," and an ordinance of said 

city of , entitled "An ordinance authorizing the borrowing of 

dollars and sale of bonds therefor," adopted on the day of , 18 — . 

In witness whereof the mayor of said city has hereunto signed this iDond as 
mayor of said city; and the clerk of said city has hereunto countersigned the 
same as clerk of said city, and attached thereto the corporate seal thereof, this 

day of , 18 — . 

N. d., A. M., 

Clerk of the City of . [Corporate Seal.] Mayor of the City of . 

Coupon. 

% . No. . 

On the day of , iS — , the city of promises to pay to 

or bearer, dollars, being one year's Interest due that day on bond 

No. for $ , dated on the dVy of , 18 — . 

N. O., 

Clerk oftheCitvof . 



155] 



LOANS AND FUNDING BONDS. 



[§3119 



Clerk's Receipt. 

Received of A. M., mayor of the city of , bonds with 

coupons attached, each bearing date on the day of , i8 — , each call- 
ing for dollars, with per cent, interest, payable annuall}^ num- 
bered consecutively from i to , one-fourth part thereof due on the 

day of , i8 — , one-fourth on the day of , i8 — , one-fourth on 

the dav of , i8 — , and the remainder on the day of , 

iS— . 



Dated 



iS— , at the city of 



-, Ind. 



N. O., 

Clerk of the Citv of 



Treasurer's Receipt. 



[The above form may be used.] 



Treasurer's Report. 



To the Common Co7incil of ihc City of ; 

I hereby report to your honorable body that I have received from the 

citv clerk bonds witK interest coupons attached, each bearing date on 

the day of , i8 — , each calling for dollars, with inter- 



est, pavable annually, nuijibered consecvitively from i to - 
, i8 — , one-fourth , 18 — , one-fourth , 18- 



one-fourth due 
-, and the remain- 



der , 18 — , all signed bv the mayor and countersigned by the city clerk. 

L. U., 
City Treasurer,- 

Registry of Bond. 



Date of 
Bond. 



Xo. 



When 
Due. 



Rate of 
Interest. 



Date of 
Sale. 



To ^Vhom Sold. 



Amount real- 
ized by Sale. 



Appointment of Committee. 

Resolved, That A. B. and C. D., councilmen, and L.U., city treasurer, 
be and are hereby appointed a committee of three to negotiate and sell the 
bonds of the city, now in the hands of said treasurer, and referred to by him in 
his report of , 18 — , 

Report o-f Committee. 



To the Common Council of the City of .• 

We, the undersigned, appointed as a committee to sell the bonds of said 

city, issued , 18—, hereby report that on the day of , 18 — , 

we sold of said bonds, from No. to , for the sum of dol- 
lars, and paid over said sum to the city treasurer. 



A. B., 
C. D., 
L. U. 



Notice of Sale of Bonds. 



day of 



Of/ice of Clerk of the City of 
Sealed proposals wall be received at this office ttntil — 
, 18 — , at twelve o'clock m., for the purchase of 



bonds of 



§ 3I20] CITIES. [156 

the city of , bearing date the day of , 18 — , and payable in 

years from date, each being for the sum of dollars, and bearing 

interest at the rate of per centum per annum, payable annually. Said 

bonds are issued for the purpose , in pursuance of an act of the 

general assembly of the State of Indiana, entitled "An act authorizing incor- 
porated cities containing a population of fifteen thousand to make loans, and 
prescribing rules and regulations concerning the borrowing of money by such 
cities," approved March 10, 1873, ^'^'^ c>f an ordinance entitled "An ordinance 

authorizing the borrowing of dollars and sale of bonds therefor," passed 

the day of , 18 — , authorizing their issue. 

Said bonds will be sold to the highest bidder for not less than their par 
value. 

Bidders are required to state the number of bonds bid for, and the gross 
amount they will pay for the bonds bid for, and accrued interest to date of 
transfer. 

The right to reject any and all bids is reserved. 

Proposals must be sealed and indorsed " Bids for Bonds." 



City Clerk. 



The sale mav be made without bids. 



Treasurer's Report. 



To the Common Cotincil of the City of : 

I hereby report that the commJttee appointed by this council on the 

-: day of , 18 — , to negotiate the sale of the bonds of said city, 

issued , 18 — , on the day of , 18 — , sold numbers of 

said bonds to , for the sum of dollars each, making a total of 

dollars, after days' notice published in the Daily Argtcs of this city, 

and on the same day paid the proceeds thereof into my hands. The sum re- 
ceived was the highest offer made for the bonds. 

L. U., 

City Treasurer. 
[1877, p. 14. Approved and in force February 13, 1877.] 

Sec. 3120. Large cities — Funding-bonds, i. Where the ag- 
gregate indebtedness of any city in this State having a voting 
population of over sixteen thousand, as shown by the votes cast 
for governor at the last preceding election, amounts to or exceeds, 
at the date of the passage of this act, two per cent, upon the total 
of the^axables upon the city tax duplicate for the current year, it 
shall be lawful for the common council of any such city, on or after 
May I, 1877, to fund so much of said indebtedness as may be out- 
standing on said first of May, 1877 (whether such indebtedness be 
then due or is thereafter to become due), in the bonds of such city, 
drawing not exceeding six per cent, per annum interest, payable, 
semi-annually, at such place and time as the common council of 
said, city may, by ordinance, provide ; which bonds such common 
council is hereby authorized to issue: Provided, Jiowever, That such 
funding-bonds shall be used only in taking up and canceling war- 
rants and bonds of such city, previously issued to creditors, or sold 
and delivered, as may be outstanding on said first day of May, 1877. 
And to that end, it shall be the duty of the common council to 
cause a full and complete statement to be made of the said bonds 



157] LOANS AND FUNDING BONDS. [§§3121, 3122 

and warrants outstanding at that date ; which statement shall be 
signed by the mayor, treasurer, and clerk, and be spread on the 
record of the proceedings of the council, and published in one or 
more newspapers in such city; and the aggregate of the funding- 
bonds issued shall not exceed the amount of such indebtedness 
outstanding on said first day of May, 1877. And whosoever shall 
issue, or aid or abet in issuing, bonds exceeding in amount the 
amount herein authorized, or shall apply, aid, or abet in applying 
the same to any other purpose than the purposes herein author- 
ized, shall be deemed guilty of a felony, and shall be punished by 
imprisonment in the state prison not less than one nor exceeding 
ten years, and be fined in any sum less than ten thousand dollars ; 
and if he be an officer of such city, suit may also be brought upon 
his official bond for the amount issued or misapplied contrary to 
this act. 

Sec. 3121. Limit of debt. 2. When the aggregate indebted- 
ness, funded or otherwise, of any city of this State having a voting 
population of over sixteen thousand, as shown by the votes cast 
for governor at the last preceding election, amounts to or exceeds 
two per cent, upon the taxables borne upon the city tax duplicate 
for the current year, it shall not be lawful to increase such in- 
debtedness in any manner or form whatever, except only by tem- 
porary loans in anticipation of the revenue of the then current 
year, and not exceeding two-thirds of the amount of the city tax 
duplicate for the preceding year, payable out of said revenue and 
within the current year ; and no temporary or other loan upon the 
revenue of any year thereafter shall be made until all temporary 
loans upon the revenue of any preceding year have been fully paid ; 
and any ordinance or resolution, warrant, certificate, obligation, 
note, contract, or other evidence of indebtedness, by whomsoever 
"made, or in whatsoever form, to increase the indebtedness of any 
such city, except as herein provided, shall be absolutely null and 
void. 

Constitutional limitation, § 220, notes. 

Sec. 3122. Limit of tax-levy. 3. It shall not be lawful for the 
common council of any city in this State having a voting popula- 
tion of over sixteen thousand, as shown by the votes cast for 
governor at the last preceding election, to levy and assess a tax, 
for any one year, exceeding, in the aggregate, ninety cents upon 
the hundred dollars returned for taxation upon the city tax dupli- 
cate for the current year; and it shall not be lawful for the board 
of school commissioners of any such city to levy or assess taxes 
for any one year exceeding, in the aggregate, twenty cents on the 
hundred dollars of property returned upon the city tax duplicate 
for the current year : Provided, liowevcr, In addition to the sum of 
twenty cents aforesaid, said board of school commissioners may 
levy a tax, each year, for the support of free libraries, as now pro- 



§§3123—3125] CITIES. [158 

vided by sub-section three of section four [§ 4460] of an act 
providing for a general system of common schools in all cities of 
thirty thousand or more inhabitants, and for the election of a board 
of school commissioners of such cities, and defining their duties 
and prescribing their powers, and providing for common school 
libraries within such cities, approved March 3, 1871. And so 
much of any law as requires the levy of a tax by the common 
council for a sinking fund is hereby repealed as to such city ; and 
any money in the city treasury of such city, on account of such 
sinking fund, may be appropriated by the city council for general 
city purposes. 

SSG. 3123. Orders forbidden. 4. No warrant or order for 
money shall be drawn upon the treasurer of any such city after 
May I, 1877, if at the time there be no money in the treasury; 
and, to that end, it shall be the duty of the city treasurer to keep 
the clerk, auditor, or other officer authorized to draw orders or 
warrants, informed when there is no money in the treasury; and, 
failing to do so, he shall be liable, on his official bond, for the 
amount of orders or warrants drawn during such failure, with in- 
terest thereon, to the person in whose favor such order or warrant 
was drawn. If the clerk, auditor, or other person authorized to 
draw orders or warrants upon the treasurer, shall draw any order 
or warrant upon the treasurer, knowing there is no money in the 
treasury, he shall be liable, on his official bond, for the amount, 
with interest thereon, to the person to whom such order or war- 
rant was made payable. 

Sec. 3124:. Appropriations forbidden. 5. It shall not be lawful 
for the common council of any such city, after May i, 1877, to 
make any appropriation of money, unless, at the time of making 
such appropriation, the money be in the treasury with which to 
pay the same. 

[1877, p. 17. Approved and in force March 3, 1S77.] 

Sec. 3125. Funding by small cities, i. Any city of said State 
having an indebtedness of not less than thirty thousand dollars, 
evidenced by bonds, notes, or city orders, or any or either of them, 
may, for the purpose of funding its indebtedness, reducing the rate 
of interest on its pre-existing obligations, comipromising with any 
creditor or creditors, or taking up and cancelling its bonds, notes, 
or other securities already due, or which shall hereafter become 
due, upon the vote of two-thirds of the members of its common 
council, issue its bonds, with orwithout coupons, not exceeding in 
the aggregate the whole amount of the indebtedness of such city; 
which bonds may be of any denomination, and payable at any time 
and place, and bear any rate of interest not exceeding ten per cent, 
per annum, payable semi-annually. And said city may negotiate 
said bonds at any market or place, at any rate of discount not ex- 
ceeding ten per cent. ; and after such bonds shall have been nego- 



159] LOANS AND FUNDING BONDS. [§§ 3 1 26 31263 

dated, no action or proceeding shall be instituted, nor any defense 
to any action interposed, by said city, or by any person or persons, 
the object of which shall be to impair the validity or security or 
depress the value of said bonds. 

Sec, 3126. Tax — Sinking fund. 2. The common council of said 
city shall, annually, add to the tax duplicate a levy sufficient to pay 
the yearly interest on said bonds, with an addition of not less than 
five cents on the one hundred dollars, to create a sinking fund to 
provide for the liquidation of the principal thereof; which fund, 
with all the increase thereof, shall be applied to the payment of 
said bonds, and to no other purpose : Provided^ That the provisions 
of this act shall not apply to any city having a voting population 
of sixteen thousand or over, as shown by the votes cast for gov- 
ernor at the last preceding election. 

1. An act of 1865 (S., p. 146), which took effect December 2, 1865, author- 
ized cities which shall have commenced the erection of any school-building to 
issue bonds not exceeding thirty thousand dollars, and payable in twenty years, 
in order to pay for such building, and to levy a special school tax to liquidate 
such bonds. 

2. In 1879 an act was passed concerning the funding of the debt in any city 
of less than 16,000 inhabitants, acts 1879, p. 87, This act was amended in 1881, . 
(acts 1881, p. 12.) R.S. 1881, §§ 3230, 3231. Possibly this act repealed the above 
tvv-o sections. But these acts of 1879 and 1881 were repealed by an act of 1887, on 
the same subject, § 3230. In 1889 an act was passed providing for funding the 
debt of any city having a population of 10,000 and an indebtedness of $100,000, 
§3126^. 

3. See § 3158; investment of sinking fund, ^ 3i58«. 

4. See § 3119, notes i to 5. 

[1889, p. 32. Approved and in force February 29, 1889.] 

Sec. B12Ba. Sinking fund commissioners, i. In all cases where 
any city organized and incorporated under the general laws of the 
State of Indiana, and having a population of ten thousand or more 
inhabitants shall be indebted to the amount of one hundred thou- 
sand dollars, or more, evidenced by the bonds of such city, there 
may be appointed, in the manner hereinafter provided, two com- 
missioners who shall be known and designated as the ' ' sinking 
fund commissioners." [El. Sup. § 696.] 

Sec. 3126(5. Election — Oath — Bond. 2. Such commissioners 
shall be of opposite politics, and shall be selected from the two 
political parties casting the greatest number of votes at the last 
preceding general election for state and county officers. They 
shall be elected by the common council of said city, and before 
entering upon the discharge of the duties of their office, they shall 
severally execute bond to the State of Indiana in a penalty of 
double the amount of the outstanding bonds of the city for which 
they shall be appointed, with sureties to the satisfaction of the 
judge of the circuit court of the county in which such city is 
situated. They shall take an oath to faithfully and honesth' dis- 
charge the duties of their trust, and to faithfully and honestly ac- 



§ ^I26f\ CITIES. [l6o 

count for and pay over to the person or persons, officer or officers, 
entitled thereto all moneys which may come to their hands as such 
commissioners, and their oath shall be endorsed on the certificate 
of their appointment. Such bond and oath shall be filed in the 
office of the county clerk, and such bond shall be recorded in the 
order book of said court. Such commissioners shall hold their 
office for the term of five years, unless sooner removed by the 
order of the court having jurisdiction in that behalf [El. Sup. § 
697.] 

1. So far as this section requires the commissioners to be selected from the 
two political parties casting the greatest number of votes, it is void, 118 Ind. 
426; 58 Mich, 213, S. C. 55 Am. R. 675. See 148 Mass. 375. 

2. The constitution provides that the term of an office shall not exceed four 
years, R. S. 1881, § 224, So far as this act attempts to make the terms of office 
five years it is void. Whether or not these two defects render the whole act 
void, only the supreme court can determine. 

Election of Commissioners. 

Resolved by the common council of the city of that A. B. and 

CD. be and are hereby elected " sinking fund commissioners "for and during the 
ensuing term of said offices, the term of sucia offices to begin from this date. 

Election Certificate. 

I, X. Y., clerk of the city of , State of Indiana, hereby certify 

that at a regular meeting of the common council of said city, held in the coun- 
cil chamber thereof, on the day of , 18 — , A. B. Avas duly elected 

by the said council sinking fund commissioner of said city, his term" of office 
to begin from the date of his election. 

In testimony whereof I have hereunto set my hand and affixed the seal of 
said city this day of , 18 — . 

X.Y., 

[Seal.] Clerk of City of . 

Oath. 

State of Indiana, County of , .y^.- 



I, A. B., do solemnly swear that I will faithfully and honestly dicharge 

the duties of sinking fund commissioner of the city of , State of Indiana, 

and will faithfully and honestly account for and pay over to the person or per- 
sons, officer or officers, entitled'thereto, all moneys which may come to my hands 
as such commissioner. So help me God. 

A. B. 

Subscribed and sworn to before me this day of , i8 — . 

L. U., 

[Seal.] Xotary Public. 

Bond. 

Know all men by these presents that A. B., as principal, and U. T. and 

R. S., as sureties, are firmly bound unto the city of , State of Indiana, in 

the penal sum of dollars. Witness our hands and seals this day 

of , iS— . ^ 

The condition of the above bond is, that whereas said A. B. was elected a 

sinking fund commissioner of said city, by its common council, on the 

day of , 18 — , for a term of office beginning from the date of his election; 

now if the said A. B. shall faithfully and honestly discharge the duties of his 



l6l] LOANS AND FUNDING BONDS. [§ 3 1 26(; 

said trust, and faithfully and honestly account for and pay over to the person or 
persons, officer or officers, entitled thereto, all moneys which may come to his 
hands as such commissioner, then this bond shall be void : else in full force 
and effect. 

A. B., [Seal.] 
U.T., [Seal.] 
R.S. [Seal.] 

Approved bv me this day of i8 — . 

R. T., 

Jiidj^e of the Circuit Court. 

Sec. 3126^, Duty of treasurer — Deposit of funds. 3. It shall be 
the duty of the city treasurer, at the end of each calendar month, 
to furnish to the said commissioners a statement in writing, veri- 
fied by his affidavit, showing the whole amount of taxes collected 
by him during the preceding month, and the proportion thereof 
collected on account of the sinking fund for the redemption and 
payment of all the outstanding bonds of the city, and also the 
amount collected by him on account of the fund for the payment 
of the interest on such bonds, and the treasurer shall, at the time 
of rendering such statement, pay over to the commissioners the 
full amounts so collected=by him on account of each of said funds. 
The said funds and moneys so received by the said commissioners 
shall, on the day they are received by such commissioners, be de- 
posited by them in two or more national banks in the city owning 
the bonds, such deposits to be made in the joint names of such 
commissioners in their official character and not otherwise, and no 
check or draft shall be paid by such banks out of said funds unless 
signed by each and both of said commissioners. If any interest or 
other compensation shall be allowed or paid directly or indirectly 
by any bank or banks for or on account of such deposit such in- 
terest or compensation shall constitute a part of such trust funds, 
and in no event shall such commissioners receive or derive any 
profit or advantage from such fund or deposits. [El. Sup. § 698.] 



Report to Commissioners. 

To the Sinking Fu7id Commissioners of the City of ; 

I herewith submit my report for the month ending , i8- 

Amount of taxes collected, $— 

Amount of taxes collected for redemption and payment of 

bonds, $- 

Amount of taxes collected for payment of interest on bonds, . $— 
Total collected, "I^ 



X. U., 

Treasurer of the Citv of 



I, X. U., upon my oath state that the above report is true in substance and 
in fact. 

X. U. 

Subscribed and sworn to before me this dav of , rS — . 

L. T., 
[Seal.] NoiaryPubUc. 

II 



§ ^I26d~\ CITIES. [162 

Receipt. 

, , 18-. 

Received of X. U., treasurer of the city of , the following amounts 

for the purposes herein stated, to wit: 

Amount for redemption and payment of bonds, $ 

Amount for payment of interest on bonds, $— — — 

Total received, .... $ 

A. B., 
CD., 

Sinking Fund Commissioners of the City of . 

Sec. 3126^. Commissioners' report and publication. 4. It shall be 
the duty of said commissioners to publish in a daily newspaper of 
general circulation in the city where they are appointed, on the last 
Monday in June and the last Monday in December of each year, 
a statement and report of the amount of money in their hands 
as such commissioners, and the objects to which the same is to 
be applied ; which statement and report shall be verified by their 
affidavit, and one copy thereof shall be forthwith filed in the office 
of the city clerk and by him recorded in the minutes of the pro- 
ceedings of the common council, and one copy of such statement 
and report shall by such commissioners be filed with the clerk of 
the circuit court. [El. Sup. § 699.] 

Report of Sinking Fund Commissioners. 

To W/iom it May Co7icer7i : 

The undersigned, sinking fund commissioners of the city of , 

State of Indiana, herewith submit their report for the six months ending on the 
day of , iS — , viz.: 

REDEMPTION FUXD. 

They are chargeable with the following amounts, to wit: 

Amount of fund for redemption and payment of bonds as bv 

last report, .... . . . . ' % 

Amount received for redemption and pavment of bonds since 

last report, ' % 

Total on hand at the beginning of and received during the 

last six months for redemption and pavment of bonds, . . % 

They are entitled to the following credits, to wit: 

Amount paid out for redemption and payment of bonds, . . . % 

Remainder now on hand for redem.ption and payment of 

bonds, % 

IXTEREST FUXD. 

They are chargeable with the following amounts, to wit: 

Amount of fund for payment of interest on bonds, as bv last 

report, . . . . " . ... \ . . % 

Amount received for payment of interest, % 

Total on hand at the beginning of and received during the iast 

six months for the payment of interest, !i^ > 






163] LOANS AND FUNDING BONDS. [§3126^ 

Ther are entitled to the following credits, to wit : 

Amount paid on interest of bonds, $ 



Remainder now on hand for payment of interest, $ 

A. B., 
CD., 



Sinking Fund Commissioners of the City of • 



Sti^fc of ludiana, County of , .?.?; 

A, B. and C. D., upon their oaths, say that the above report is true, as they 

verily believe. 

A. B., 
C. D. 

Subscribed and sworn to before me this day of , iS — . 

[Seal.] L. M., 

Notary Public. 
[1S91, p. 393. Approved March 9, 1S91 ; and in force June 3; 1891.] 

Sec. 3126f. Use of funds — Misapplication. 5. It shall be the 
duty of such commissioners to pay out of the funds in their hands, 
collected on account of interest on the indebtedness of such city, 
the interest on the bond[s] of such city as the same becomes due 
and payable, and as the bonds mature, the said commissioners shall 
pay them out of the fund provided for that purpose, and held by 
them. No part of the fund collected for the payment of interest 
on the bonds shall be used for the payment of the principal sum 
of any bond or bonds, and no part of the funds collected for the 
redemption or payment of the principal of such bonds shall ever 
be used for the payment of interest on such bonds : Provided, hozv- 
ever, That whenever the funds which shall come into the hands of 
said sinking fund commissioners for the payment and redemption 
of the principal of such bonds shall amount to the sum of ^5,000, 
it shall be the duty of such sinking fund commissioners to purchase 
such bonds of the holders thereof at the best cash price for which 
they may be able to obtain the same, not in excess of the market 
price thereof, but no such purchase shall be made without the ap- 
proval of the common council ; and said commissioners shall, in 
case they are compelled to purchase said bonds at a premium, pay 
said premium out of the funds in their hands for the redemption 
of the principal, or the funds in their hands for the payment of the 
interest thereon, at the discretion of such sinking fund commis- 
sioners. For any misapplication or diversion of any moneys com- 
ing to their hands, the said commissioners shall be liable upon their 
bonds, and the judgment in every such action shall, in addition to 
the principal sum recovered, include a penalty of ten per cent, on 
such sum, and an attorney's fees often per cent, on such principal 
sum and penalty. Any person or persons aggrieved by the mis- 
application or diversion of such funds may maintain an action on the 
bonds of the said commissioners as relators in such action, and such 
action may, at the option of the person aggrieved, be prosecuted 
against either or both of such commissioners at the same time. 



§§ 3 I 26/— 3 I 30] CITIES. [ 1 64 

[1889, p. 321 Approved and in force February 23, 1889.] 
Sec. 3126/i Pay of commissioners. 6. The said commissioners 
shall be allowed and paid for all their services such per centum per 
annum upon the total amount actually paid out by them as may 
be determined by the common council, and no more, such pay- 
ment to be made out of the city treasury upon the order of the 
common council. [El. Sup. § 701.] 

Sec. 3126^. Removal of commissioners. 7. Such commissioners 
in any city may be removed from their trust by the judgment of 
the circuit court having jurisdiction, upon the complaint of any 
tax-payer of such city or of any person holding any bond, or in- 
terest warrant payable out of the funds in the hands of such com- 
missioners, upon proof of any neglect or violation of the duties of 
such trust. [El. Sup. § 702.] 

Sec, 3128//. Vacancies. 8. Vacancies in the office of such 
commissioners shall be filled by election by the common council 
of said city. [El. Sup. §703.] 

[1S79 S., p. 85. Approved March 18, 1879, and in force May 31, 1879.] 

Sec. 3127. Surrender of charter, i. The tax-payers of any city 
in this State with a population of less than seven thousand inhab- 
itants may surrender the charter and organization of such city as a 
municipal corporation, in accordance with the provisions of this 
act. «. 

Sec. 3128. Petition — Proceedings. 2. Whenever two-thirds in 
numiber of the resident tax-payers, male and female, of such city, 
over the age of twenty-one years, shall file in the clerk's office of 
the circuit court of the county a petition, addressed to the judge 
of said court, desiring to surrender the charter or municipal organi- 
zation (in which petition, the said municipality, by its corporate 
name, shall be made a party, against which summons shall be 
issued, returnable as in civil actions), it shall be the duty of the 
judge of said court, at the next term of said court, on proof of the 
signatures Of the petitioners to said petition, to declare and decree 
the charter or municipal organization of such city, from thence- 
forth, to be null and void. 

Sec. 3129. Official acts cease with decree. 3. After the entering 
of the decree mentioned in the preceding section by the judge, it 
shall be unlawful for any officer to assume or take upon himself 
the right to perform any duty or act as such officer of such city. 

Sec. 3130. Vested rights not affected. 4. Nothing contained in 
this act shall be construed as affecting any vested right or contract 
made by such city before the rendition of the decree by the judge 
mentioned in section two [§3128]; but all such vested rights or 
contracts shall have the same force and effect as though such sur- 
render or decree had never been made, and the remedies therefor 
shall continue and be enforceable against said municipality in its 
original corporate name. 



165] HARBORS AND DOCKS. [§ 3 I 3 I 

1. Cities over seven thousand inhabitants can not be dissolved. Cases on 
the subiect of dissolution of cities and the rights of creditors are 93 U. S. 266; 
103 U.S. 472; 122 U. S. 284; 115 U. S. 550; 116 U. S. 2S9; 19 Wall. 107, 655; 
130 U.S. 301; 15 How. 312; 2 Woods C. C.642; 22 Fed. Rep. 421; 60 Miss. 
345; 13 Fed. Rep. 334, S. C. 9 Fed. Rep. 747; 5 Fed. Rep. S60; 77 Ala. 103; 35 
Fed. Rep. 32; 29 Fed. Rep. 742 ; 100 U.S. 514; 7 Biss. 142; 13 Sm. & Marsh 
(Miss.) 157; III N. Y. I. 

2. Questions as to whether requisite number of qualified petitioners have 
signed it is not triable by jury as of right, and either party may appeal from 
judgment thereon, 42 O. S. 215. Signers may withdraw names before petition 
is acted upon, Ibid, 

Petition. 

A. B.^ et aL, vs. the City of . No. — — . 

To the Judge of the Circuit Court: 

The undersigned, being two-thirds in number of the resident tax- 
payers, male and female, of the city of , in the State of Indiana, desire to 

surrender the municipal organization of said city. 

[Signed.] 

Summons- 

[A summons should be issued upon the order of the court, after the petition 
is docketed. An entry on the order book should be made of this order, and the 
substance of this order endorsed on the back of petition and signed by the 
judge. An ordinary summons may be used.] 



Order-Book Entry. 

[ Title.] Comes now A. B., and others, by their attorney, N. P., and show to 
the court that the petition of A. B., and others, herein was filed in this court on 

the day of , 18 — , which petition is in these words, to wit: [Here 

insert.] And it is also shown to the court that on the day of , 

18 — , a summons was issued for the said city of , returnable on the 

day of , 18 — , the first day of the next term of this court, which sum- 
mons, as shown by endorsement thereon by the sherifi:'" of county, was 

served on said city on the day of ,18 — , and which summons and 

return are in these words, to wit: {Here insert.] And now said city is three 
times called, and comes not, wholly making default herein; and the court, hav- 
ing heard the evidence and argument of counsel, finds that two-thirds in num- 
ber of the resident tax-payers, male and female, of said citj^ of , over the 

age of twenty-one years, have signed said petition and filed the same in the 
clerk's office of this court, expressing a desire to surrender the municipal or- 
ganization [or, vjhen organized tinder a special act, charter] of said city. It is 
therefore ordered, declared, and decreed that said municipal organization [(v, 
charter] be and the same is hereby surrendered, and said city as a municipal 
corporation is hereby wholly dissolved and rendered null and void. 

[1875, P- 25. Approved and in force March 9, 1875.] 

Sec. 3131. Constructing harbor, i. Any incorporated city in 
this State, situated upon or adjoining any harbor connected with a 
navigable stream or lake, or upon any natural water-course which, 
by dredging or otherwise, may be made into a harbor, is hereby 
authorized to construct an entirely new harbor, or may extend, 
widen, deepen, repair or otherwise improve, any harbor now made, 



§§3132—3134] CITIES. [166 

partially made, or in process of construction ; and, for that purpose, 
may loan the credit of the city, as is now provided by law in cases 
of public improvements. 

Sec. 3132. City may do the work. 2. Such city may undertake 
and perform the work without sub-letting, if the common council 
shall deem it best ; in which case the work shall be under the su- 
pervision of a committee of the common council appointed for that 
purpose, to which committee may be added the city engineer. All 
estimates of work upon which payment is demanded shall be certi- 
fied to be correct by the city engineer; and no payment for work 
or materials furnished shall be anticipated. Appropriations for the 
payment for such work and materials shall be made, from time to 
time, by the common council, out of the funds raised for such pur- 
pose, as may be necessary for an expeditious prosecution thereof 

Sec. 3133. Contract. 3. Such city may let such work to any 
person or company, by first publicly advertising in such manner as 
the common council may deem best ; and the work shall be let to 
the lowest responsible bidder. But before the work is commenced, 
and before such contractor shall be entitled to payment for any 
work or labor done or materials furnished, he shall make and enter 
into bonds, with adequate penalty, with good and sufficient secur- 
ity, to be approved by the committee in charge of said work, for 
the faithful performance of his contract ; and, during the progress 
of the work, such contractor shall not be entitled to receive within 
twenty per cent, of the value of the work done or materials fur- 
nished until the completion of the whole ; and in no case shall the 
city engineer certify the correctness of any bill beyond eighty per 
cent, of the value of the work done or materials furnished. 

[1877, p, 19. Approved and in force March 3, 1877.] 

Sec. 3134. Map and profile— Estimate. 4. Before any bonds 
shall be issued or work done under sections 3 131 to 3 141, the com.- 
mon council shall cause the city engineer to make a map and pro- 
file of the work proposed to be done, and an estimate of the cost 
thereof, which shall be filed in the office of the city clerk ; which 
map and profile shall be notice, to any and all parties interested, 
of the manner in which they are affected by said contemplated 
v/ork. If any such harbor or natural water-course be or shall be 
crossed by any railroad, before the commencement of the w^ork in 
this act authorized, the map and profile of the improvement con- 
templated shall include and show such bridge, railroad tracks, side- 
tracks, railroad ground, and switches over and across such harbor 
or natural water-course, and for a sufficient distance on each side 
thereof, to indicate and show all contemplated changes of the lo- 
cation of said bridge, railroad tracks, side-tracks, railroad ground, 
and switches, also all such contemplated changes, and all additional 
lands for right-of-way for such railroad or for depositing earth (com- 
monly called right-of-waste) deemed necessary by such change. 



167] HARbORS AND DOCKS. [§§3135 313^ 

and to enable the same to be properly made. And the city shall 
have the power to appropriate the lands, so included in said map, 
for such additional right-of-way or waste ; and when such appro- 
priation is made, it shall inure and belong to and become the prop- 
erty of the company owning or in the possession of said railroad, 
upon payment to said city of all costs therefor, in the same man- 
ner and to the same extent as if taken by such company under and 
in pursuance of its charter. 

[1S75, P- -5' Approved and in force March 9, 1875.] 

Sec. 3135. Appropriation of land. 5. All incorporated cities 
in this State shall have power to appropriate so much of the land 
belonging to any person or persons, abutting on or adjoining any 
natural water-course which it is proposed to make into a harbor, 
necessary to the construction and completion thereof; and the land 
which is appropriated shall be particularly described on the plat 
and profile aforesaid. 

Sec. 3136. Condemnation. 6. Such appropriation shall be 
deemed to be made as soon as such plat and profile is filed in 
said clerk's office ; and thereafter, if the city and the land-owners 
affected thereby shall be unable to agree upon the value of the 
land taken and damages sustained or benefits arising therefrom, or 
if the owner be a non-resident of the county, an infant, lunatic, or 
idiot, the said city may condemn the land thus appropriated in the 
same manner as lands are now condemned by cities for streets and 
alleys, and the committee appointed by the common council for 
such purpose shall be constituted the appraisers for condemning 
land, as in this act provided. 

Sec. 3137, ' Notice of appraisement. 7. Whenever the common 
council shall, by resolution, recite the fact that the city is unable 
to agree with any land-ovv^ner or owners as to the value of the 
land taken or damages sustained or benefits accruing, or that any 
of the owners are infants, lunatics, or idiots, said resolution shall 
be sufficient authority for said commissioners to proceed to ap- 
praise the land appropriated, the damages sustained, and benefits 
accruing; but before such appraisement shall be made, ten days' 
notice, by publication in any newspaper of general circulation in 
in the county, shall be given of the time and place when and 
where said commissioners will meet to make said appraisement; 
which notice, verified by the affidavit of the publisher or owner of 
said paper, shall be returned with their appraisement by said com- 
missioners. 

Sec. 3138. Eeport. 8. The value of the lands appropriated, 
together with the benefits and damages, shall be considered by 
such commissioners and determined by them, who shall return the 
same to the city clerk within five days after making and complet- 
ing it ; which report of said commissioners shall describe the land 
appropriated, the value thereof, and the damages and benefits 



§§3139—3143] CiTIES. [168 

which will accrue to the owner by reason of the proposed improve- 
ment or the appropriation thereof, and all lands adjacent or near 
said proposed work, and directly benefited thereby, may be as- 
sessed for benefits which will accrue by reason of the proposed 
work. 

Sec. 3139. Possession after tender. 9. The city shall be enti- 
tled to the possession of the land, for the purpose aforesaid, as 
soon as a tender of the money shall have been made to such 
owner, or if he be under disability, then to his guardian ; and if 
there be none, or the owner be a non-resident, then by the pay- 
ment thereof to the clerk of the circuit court of county in which 
said land is situate, who shall receive the same and hold it, by 
virtue of his office, for such owner or his legal guardian. 

Sec. 3140. Appeal. 10. Either party may appeal from such 
assessment within thirty days after such assessments are filed, and 
shall be governed in such appeal as is now provided by law for 
appeals from assessments for streets and alleys. 

Sec. 3141. Assessments are liens — Foreclosure, -ii. All assess- 
ments of benefits shall be collected by installments, in such man- 
ner as the common council shall, by resolution, provide, and shall 
be liens upon the lands against which they are assessed ; and it 
shall be the duty of the commissioners, in returning said assess- 
ments, to prescribe particularly the lands benefited. All assess- 
ments for benefits shall belong to the city, and may be foreclosed, 
whenever any installment shall become due and remain unpaid, in 
the name of the city, in the same manner as foreclosure of mort- 
gages are enforced, and shall be collected without relief from valu- 
ation or appraisement laws. 

[1877, p. 20. Approved and in force March 3, 1S77.] 

Sec. 3142. Harbors — Slips — Books — Eegnlating. i. All incor- 
porated cities within the State, adjacent to and within which any 
pubhc harbor may be located and constructed, shall have power 
to regulate all harbor channels, slips, or other water-thoroughfares 
and docks, and to repair those already constructed, bordering upon 
such channel, slip, or thoroughfare and dock property within a 
distance of eighteen feet back from the water-front of such property 
situated upon such harbor, and may, by proper ordinance, compel 
all land or lot-owners whose land or lots border or front upon such 
channel, slip, or thoroughfare, to make and construct proper docks 
or revetments, so as to prevent the washing or filling in of earth or 
other substances into such channel, slip, or thoroughfare. 

Sec. 3143. Owners to repair. 2. It shall be the duty of the 
common council to provide, by ordinance, in what manner and 
within what time all docking shall be done, and, by resolution, in 
what manner and within what time all necessary repairs shall be 
done ; and upon service of notice upon any property-owner of the 



169] HARBORS AND DOCKS. [§§3144 3 14/ 

passage of any ordinance or resolution requiring the construction 
or repair of any dock in front of any land, lot, or lots owned by 
any party, it shall be the duty of such owner to construct or repair 
such dock in accordance with the requirements of such ordinance 
or resolution. 

Sec. 3144. K'otice. 3. All notices required by this act shall be 
in writin^^, and issued and signed by the city clerk, and shall be 
served by the city marshal. Notice of ten days shall be given in 
all cases where notice is required by this act to be given, except 
w^here the property-owner is a non-resident of the county, or is an 
infant, idiot, or lunatic, when such notice shall be by publication 
in somie newspaper in said city, of general circulation, if there be 
any, and if not, in some newspaper of general circulation nearest 
thereto, published in the State of Indiana, for three successive pub- 
lications, whic.i publications shall be deemed equivalent to personal 
service of notice. 

Sec. 3145. Construction. 4. If any such owner or owners, after 
legal service of notice to construct or repair their respective docks, 
shall fail or refuse so to do within a reasonable time, such city 
may, at its option, construct such docks or make such repairs, or, 
by advertisement for bidders, published in some newspaper of 
general circulation in any such city, let such construction or re- 
pairs, by contract, to the lowest responsible bidder; and the cost 
thereof, in either case, shall be assessed against the property of 
such owner or owners so fronting or abutting on said harbor or 
thoroughfare, by the city commissioners, as other property is now 
assessed for benefits for public improvements: Provided, Said 
commissioners shall not be confined in making assessments for the 
construction of docks to the property immediately fronting on such 
harbor, but may assess any other property adjoining such frontage 
which will be benefited thereby : And provided, further, That in 
cases of repairs only, the cost thereof must be confined to the 
property immediately fronting on said harbor or thoroughfare. 

Sec. 3146. Plan and estimate, 5. Before the work is com- 
menced, a plan and specifications of the work contemplated, to- 
gether with an estim.ate of the cost thereof, shall be made by the 
city civil engineer, approved and adopted by the common council, 
and filed with the city clerk ; and no more shall be assessed against 
the property benefited by such improvement than shall be neces- 
sary to complete the work contemplated. 

Sec. 3147. Eetnni of assessment. 6. When said commissioners 
shall have made their assessments, they shall return them to the city 
clerk's office within ten days thereafter, who shall lay them before 
the common council at their first meeting thereafter; and the said 
common council shall, within thirty days thereafter, either adopt or 
reject such assessments. If adopted, said assessments shall be- 
come a lien, from that time, upon the lands against which the as- 



§§3148 — 3151^] CITIES. [170 

sessments are made. The common council may also provide for 
the payment thereof in installments, in such sums and at such 
times as they may deem best. 

Sec. 3148. Assessments, how collected. 7. The said assessments 
shall be collected by said city, and in its name ; and the said 
several amounts, so assessed, shall be payable without rehef from 
valuation or appraisement laws. The proceedings shall conform 
to and shall be enforced in the manner nov/ provided by law for 
the collection of mechanics' liens or the foreclosure of m.ortgages. 

Sec. 3149. Liability of city — Superintendent. 8. No city shall 
be liable to any contractor beyond the liability of such property- 
owner to such city, and all contracts shall be at the risk of the con- 
tractor. The work shall be under the superintendence of the city 
engineer. 

Sec. 3150. Proceedings. 9. In all cases not specially provided 
for in this act, all persons interested may have the benefit of the 
proceedings provided for under an act approved March 9, 1875, 
entitled " An act to authorize incorporated cities in this State to 
construct, extend, widen, deepen, repair, and improve harbors, and, 
for that purpose, to condemn the lands of persons through or 
adjoining which such harbor may run, and to assess damages and 
benefits against adjoining, owners, where and when the same may 
be applicable." [g§ 3131 to 3141.] 

[iSSi S., p. 391. Approved and in force April 14, iSSi.] 

Sec. 3151. Sewers — Brains — Cisterns. 3. The common council 
shall have power to construct and regulate sewers, drains, and cis- 
terns, and provide for the payment of the cost of constructing the 
same and when, in its opinion, the constructionofanysewxr would be 
of public benefit to the city and necessary for the improvement of any 
street or streets, for the removal of surface or storm water there- 
from, may, by a two-thirds vote, cause to be paid out of the city 
treasury such portion of the cost of the construction of such 
sewer as, in the opinion of said council, would be equitable and 
just. 

1. See §3106, clause 43, and notes. The action of the council under this sec- 
tion is not reviewable by the courts, 34 Ind. 471. The general drainage law ap- 
plies to cities, acts 1885, p. 130, 2; El. Sup. § 1185; previous to 1885 it did not, 
loi Ind. 539. 

2. "The sewer here provided for is a part of the street improvement, made 
so bv the statute itself, and is only to be made when necessary to remove the sur- 
face or stoi-m water from the street," 121 Ind. p. 339. 

[1889, p. 13. Approved and in force February 14, 1SS9.] 

Sec. Zlbla. City may construct levees — Procedure, i. Whenever 
the common council of any city is of the opinion that the con- 
struction, repair or maintenance of any levee or levees for the pro- 
tection of the city or property Avithin the corporate limits thereof 
is of sufficient pubHc interest to justify construction, repair, or main- 



i;i] LEVEES. [§ 3151^ 

tenance thereof by the city, the common council may by resolution 
cause surveys and location and estimates of the costs thereof to be 
made, or if for improvement or repairs only, may cause surveys 
and estimates of the costs thereof to be made, and both kinds of 
surveys and estimates may be made when expedient and may pro- 
vide by ordinance on return of surveys and estimates for doing- the 
work and appropriate money from the general funds of the city not 
otherwise appropriated for that purpose and provide by ordinance 
the means required by a levee tax of not exceeding four per cent, 
on the valuation of property, and by assessment of benefits on the 
property benefited, as in case of opening or change of streets, ex- 
cept that when the benefits are to be assessed the city shall cause 
a roll to be made from the tax duplicate and assessment rolls per- 
fecting any imperfect descriptions of lands and lots and from the 
surveys outside the corporate limits, which latter shall be separate 
from the former, and the roll shall be of convenient form to allow 
the benefits assessed to be set opposite the several parcels de- 
scribed in a designated column, and shall append thereto a resolu- 
tion of the common council requiring the city commissioners to 
meet on a day named in the resolution and enter upon the duty of 
assessing the benefits to the lands and lots described on the roll, a 
copy of which resolution shall be served on the commissioners and 
they shall meet at the council hall on the day named and receive 
the roll, and enter upon their duties, and shall proceed with reason- 
able expedition, and when their duties are performed, shall return 
the roll into the clerk's ofifice of the city, duly executed, and so 
certify over their signatures. And the roll may be amended at 
any time as to omitted or imperfectly described lands or lots, and 
ownership thereof, and the benefits thereto assessed by the com- 
missioners. On such roll being returned, the clerk shall cause 
notice thereof to be given for two weeks, by publication in a news- 
paper of the city, or if none is published therein, by posting no- 
tices at five public places therein for two weeks, stating that the 
assessment of benefits roil has been returned, and that on a day 
fixed, not earlier than the expiration of the notice, the city com- 
missioners will meet at the council hall as a board of equalization 
of benefits, and will hear and determine all complaints of property 
owners assessed, and they shall be attended by the city clerk as 
clerk of the board, and shall meet from day to day until the busi- 
ness is completed, and then perfect the roll as then determined 
upon, and make final return thereof; and said roll shall be final and 
conclusive as to all property owners not appearing, and those ap- 
pearing may appeal to the common council at the next regular ses- 
sion, if aggrieved, and at such meeting of the common council ac- 
tion may be taken thereon, both as to appeals and final action, ap- 
proving or rejecting the same, and if approved the same shall stand 
as the roll of benefits, and the tax duplicate, provided for iri this 
act, shall be made therefrom as to the benefits And an^' one 



§ 3151^] CITIES. [172 

aggrieved by the action of the common council, may appeal there- 
from to the circuit court of the county wherein such city is situated, 
within twenty days, upon filing with the clerk of such city, a suffi- 
cient bond conditioned for the payment of all costs and damages 
occasioned by such appeal, and the trial of such appeal shall be 
conducted as other trials of civil causes are conducted in said court. 
The city clerk shall, upon the filing of said bond, forthwith make 
out and certify, under his hand and official seal, a true and com- 
plete copy of all papers connected in any way with said matter, 
beginning with the order of the council directing the work to be 
done and contracted for, and including all notices, precepts, orders 
of council, bonds and other papers filed in said matter, which tran- 
script shall be in the nature of a complaint, and to which the ap- 
pellant shall answer upon rule, and the same shall thereupon be 
tried in all respects as other civil cases are tried, and the result 
thereof certified by the clerk of the circuit court to the city clerk. 
And no other notices or greater formality shall be required in the 
assessment of benefits, which benefits shall be collected and col- 
lection thereof be enforced, as taxes are collected, and otherwise 
such benefits shall be assessed as provided by law for opening and 
changing of streets : Provided, That the taxes and benefits assessed 
may be divided into not exceeding six equal parts in each individ- 
ual case, or in case of joint, or tenant in common ownership, each 
such ownership shall be as an individual case; and the whole 
taxes and benefits so divided, shall be placed on the tax duplicate 
as taxes are placed, either before, at the time, or after the duplicate 
is otherwise made up, and may be placed on a separate book if 
most convenient, which shall be a part of the tax duplicate, and be 
a lien on the real estate and property taxed or benefited from 
the time assessed, and be collected and paid, one installment each 
year, as other taxes are collected, such taxes and benefits may be 
levied and assessed at any time, and such benefits assessed and 
taxes assessed may be anticipated by the city in making the con- 
tract for doing the work, not exceeding the fund so provided, and 
as otherwise provided. The tax and benefits provided for shall 
continue and be paid each year in installments, during the period 
provided, and both funds shall be sacred to the levee and shall not 
be applied to any other use until such work is completed and 
paid for. The whole tax and benefits may be anticipated in con- 
tracting for the work, and, to the extent anticipated, shall thereby 
be irrevocably appropriated to such payment until complete. [EL 
Sup. § 747.] 

Order for Estimates. 

Whereas, it is the opinion of the common council of the city of 

that a levee should be constructed from street to street along the 

south bank of creek, for the protection of the city and the property within 

its corporate limits; therefore it is ordered that the city civil engineer of said 
city make a survey and estimate of the cost of constructing said proposed levee. 



1/3] LEVEES. [§ 3151^ 

Estimate of Cost. 

[See form under § 3073, Avhich can be naodified.] 

Ordinance for a Levee, 

AX ORDIXAXCE FOR A LEVEE OX THE LEFT BAX'K OF CREEK. 

Sec. I. -Be it ordained hv the Common Council of the City of .• That 

a levee of earth on the left bank of creek from a point 200 feet east of 

street to street be established and constructed as follows: It shall 

be graded according to the stakes to be set by the city civil engineer on the fol- 
lowing grade, to wit: Beginning at station "0"'2oo feet east of said 



street, thence continuing in a westerly course 40 feet from the center of the 

stream of said creek to • street, with a uniformly descendinggradeof 

feet in a feet, according to the profile thereof now on file in the office of 

the city civil engineer of this city. Said levee shall be 25 feet wide at the top, 

with the sides thereof sloping at an angle of degrees. All trees, brush and 

perishable materials shall be first removed from the space to be covered by the 
levee, and the base plowed before the embankment is begun. The earth to con- 
struct said levee shall be furnished by the contractor. There shall be con- 
structed in connection with said levee two break-waters, one at the end of 

street and the other immediately below where street crosses said creek. 

The cribs of said break-waters shall be 10 feet wide at the bottom and 6 feet 
wide at the top and filled with stone; the timber thereof to be sound white oak, 
burr oak, pin oak, red elm or timber equally good, and hewed on two opposite 
sides to the faces, not less than 6 inches wide, and to be 9 inches thick. In 
building the cribs the joints shall be secured by cross-ties of sound oak 3 inches 
thick and 12 inches Avide. Said levee immediately above each of said break- 
waters shall be rip-rapped with stone of proper size and properly laid, under 
the directions of the city civil engineer. Twenty feet in the center of the top of 
said levee shall be graveled v>-ith good creek gravel to a depth of 15 inches in 
the center, sloping to 5 inches at the sides, so as to make a drive-way along the 
top thereof. All earth, gravel or stone work and stone and brush projections to 
be paid for by the cubic yard; all timber vvork to be paid for by the lineal foot; 
and all work to be done to the satisfaction of the city civil engineer. 

Sec. 2. The total expense for doing said vrork, including the furnishing of 
all material therefor, shall be assessed against the real estate benefited thereby ; 
the amount of benefits to be charged to the respective parcels of real estate 
benefited shall be by the city commissioners of this city assessed in the manner 
provided by laAV for the opening and grading of streets. All of said costs and 
expense shall be paid in one installment by the owners of the real estate bene- 
fited, and shall be collected in the mode and manner provided by law. No 
part of any of the expense thereof shall be charged to or collected of said city. 
All city officers are hereby required to perform all the duties provided for in the 
act of the general assembly of the State of Indiana, entitled" An act authorizing 
cities to construct, repair and maintain levees and matters connected therewith, 
and declaring an emergency," approved February 14,1889; and all of said work 
and the collection of the costs and expenses thereof shall be done pursuant to the 
provisions of said act. The contract for doing such work shall be letto the lowest 
responsible bidder. The contractor shall be required to enter into a contract to do 
said work, including all the necessary material therefor; and give bond with 
surety to be approved by the council, in the sum of $5,000, conditioned for the 
faithful performance of said work according to the plans and specifications 
herein contained and to the profile and plan of said levee now on file in said 
engineer's office, which are hereby adopted. This city shall in no wise be liable 
to construct, keep, maintain or repair said levee; nor for any damage resulting 
from the construction or maintenance thereof. 

Sec. 3. The city civil engineer is hereby directed to set the proper grade 
stakes, and also to advertise by publication one day each week, for three con- 



§3151^] 



CITIES. 



[^74 



secutive weeks, in the Argus- Ne-ajs of this city, that sealed proposals for the 
execution of said work will be received bj the council on the day named in said 
advertisement. 

Sec. 4. This ordinance shall be in force from and after its passage. 



Resolution of Reference. 

Resolved, that the matter of assessing the benefits that will be occasioned 

by the construction of the levee from street to street, within this 

city, be and the same is hereby referred to the city commissioners of this city, 

who shall meet at this council's hall on the day of , 18 — , at 10 

a. m., and receive said roll and enter upon their duties in said matter. 



Notice to Commissioners. 

ToA, B,C,D,E, and F: You are hereby notified to meet, according to 
the terms of the accompanying resolution, at the council hall of this city of 

county of , and State of Indiana, on the day of , 

18 — , to consider such matters as may be there laid before you. 
common council of said city. 



[City Seal. 



By order of the 

N. S., 

City Clerk. 



Marshal's Return. 



Served the within notice by giving a certified copy to each of the per- 
sons within named, and a copy of the resolution referred to therein, on the 

day of , 18 — . 

R. U., 

City Marshal. 

[A copy of the resolution must be served on each commissioner by the mar- 
shal. It need not be certified to.] 



Assessment Roll. 



Assessment roll containing a list of lots and tracts of land that will be 

benefited by the construction of a levee from street to street, along 

the south bank of creek, within the city of , county of , and 

State of Indiana, ordered constructed by the common council of said city on the 
day of , 18 — . 



Property within the city of 



to wit: 



Name of 
Owner. 


No. 
Lot. 


Addition. 


Amount of 
Benefits. 


Benefits as 
equalized. 


Value. 















































1 












Total, 












1 75] LEViiES. 
Property without the city of , to wit: 



[§3151^ 



Name of Owner. 


Description. 


Amount of 
Benefits. 


Benefits as 
equalized. 


Value. 




















































Total, 









[Append resolution of reference, and add the following certificate.] 



Clerk's Certificate. 



State of I?idiana, Cotinty of — 

I, clerk of the city of 

that on the dav of 



18- 



-, of said county and State, hereby certify 
— , the above and foregoing resolution of 



reference was adopted by the common council of said city, as appears from the 
records thereof. 

In testimony whereof I have hereunto set my hand and the seal of said city 

of , this day of , 18 — . 

N. L., 

rSeal.l Clerk of the City of . 



Report of City Commissioners. 



To the Co7nmon Council of the City of 



We, the undersigned, city commissioners of said city of 



-, county 



of , and State of Indiana, hereby certify that we met at the council hall 

of said city, at 10 a. m. on the day of , 18 — , as directed by reso- 
lution of your honorable body, adopted on the day of , 18 — , and 

we assessed the benefits to each tract and lot of land as described and stated 
in the above and foregoing assessment roll. 

Respectfully submitted. 

Dated , 18—. 

[Signed] 



City Commissioners. 



[This report should be written upon the assessment roll. 



Clerk's Notice. 



Notice is hereby given to {name the fersons assessed -juith benefits] that 

the city commissioners will meet at the council hall of the city of , State of 

Indiana, at 10 a. m. on the day of , 18 — , to hear any and all com- 
plaints you may desire to lay before them, and will equalize any and all. benefits 

that will be caused by the construction of a levee from street to 

street, along the south bank of creek, in said city, as ordered constructed 

by the common council thereof on the day of , 18 — . 

N. L., 
Clerk of the City of . 

[The city commissioners must take notice of the timiC set in the notice and 
meet accordingly.] 



315 1'^] CITIES. [176 

City Commissioners' Report on Equalization. 



To the Common Council of the City of : 

We, the undersigned, city commissioners of said city, and State of In- 
diana, hereby certify that we met at the council hall of said city, at 10 a. m. on 
the day of , 18 — , of which meeting two weeks' notice by publica- 
tion in the Argus- Nervs, a newspaper of said city, had been duly given by the 
clerk of said city, a copy of which notice is filed herewith, and after hearing all 
complaints, we equalized the assessments set out in the above assessment roll, as 
therein stated. There appeared before us the following persons, to wit: {Name 
them.] 

All of which is respectfullv submitted. 

Dated, , iS— . 

[Signed] ^ . 

City Commissioners. 

[This report should be appended to the assessment roll.] 
Notice of Appeal to Council. 



To the Common Council of the City of .• 

You are hereby notified that in the final report and equalization of the 
city commissioners of said city in the assessment of benefits for the construction 

of the levee, Avithin said city, from street to street, along the south 

bank of creek, that I hereby appeal from the assessment of benefits as 

assessed to the following described real estate, described in the assessment roll 
in said matter, owned by me, to wit: {Describe the la7id] for the reason that 
the said land is not benefited in the amount therein assessed to it. 

Dated, , — -, 18—. 

[Signed] 

Journal Entry. 

Resolved by the common council of the city of , that in the mat- 
ter of constructing a levee from street to street, along the south 

bank of — ^ creek, in said city, county of , and State of Indiana, that 

the assessment of benefits made by the city commissioners of said city on the 

day of , 18 — , and^as equalized by them on the day of , 

18 — , be and the same are hereby approved, and the several amounts assessed to 
the several tracts and lots of land therein is hereby declared a lien thereon, and is 

ordered collected, except that the assessment of $ , assessed to A. B. upon 

the following described land [describe it] is hereby reduced and fixed at $ . 

The clerk of this city is hereby ordered to place said assessments upon the tax 

duplicate of the city [or, county]. 

[The appeal bond and skeleton of transcript found under §3165 can be modi- 
fied and used.] 

Sec. 3151^. Contract — Payment — City orders. 2. The contract 
for the work shall be let to the lowest responsible bidder, on such 
notice and sealed bids and bond as may be provided for in the 
ordinance, the work to be paid for from the general funds appro- 
priated for that purpose, and from the tax and benefits assessed, 
so that no indebtedness of the city under the contract will exist in 
excess of the funds on hand appropriated to the payment thereof, 
until the current funds applicable are in the treasury to cancel the 
same. But the execution of the contract for the work shall sub- 
rogate the contractor, on performance by him, as stipulated to the 



177] LEVEES. [§3151^ 

lien of the city for the taxes and benefits assessed, as in this act 
provided, to the extent required to pay for the ^work, without 
affecting the right and duty of the city through its proper officers 
to collect the taxes and enforce the collection thereof, as authorized 
by law, and the expense of such work and the maintenance thereof 
shall be deemed of the current expense of the city, having the 
special benefit separately of the provisions of this act. And said 
funds may also be anticipated otherwise, in any manner authorized 
by law for other taxes, and when the taxes and benefits^ are so as- 
sessed, and the lien thereof fixed, as herein provided, orders may 
be drawn on the city treasury, payable out of the funds as the com- 
mon council may direct, in denominations from ;^ioo to ;^ 10, 000, 
showing that they are secured by the tax and benefit liens amount- 
ing to the sum of such taxes existing and in the installments thereof 
payable as fixed, and that they will be received by the treasurer in 
payment of the taxes and benefits of the year named, and no more 
shall be drawn against the fund for any year than four-fifths of the 
amount collectible in that year. Such orders shall be drawn pay- 
able to bearer, and be good to any bona fide holder, and as many 
series of such orders may be issued as the annual payment of taxes 
and benefits provided for ; and each series shall stand secured by 
the tax and benefits lien of that year, and be payable therefrom, 
and may be applied on the work as it progresses, as may be pro- 
vided for in the contract or contracts for the work, or the orders 
may be negotiated under the direction of the common council, and 
the contract made, paid in cash from the proceeds of the said or- 
ders, and when so applied or negotiated shall stand performed ,as 
against the contractor under the contract, and shall stand secured 
and shall have the full force and virtue herein provided for the con- 
tract first herein authorized, and all such orders, when taken up by 
the treasurer, shall not be again negotiated, but shall be canceled. 
[El. Sup. § 748.] 

Notice to Contractors. 

Notice is hereby given that sealed proposals will be received by the com- 
mon council of the city of , at the office of the city civil engineer, on or 

before 4 o'clock p. m., on the day of , iS — , for the construction of 

a levee on the left bank of creek, from a point 200 feet east of 

street to street, and building the necessary breakwaters and rip-rap 

thereon. 

All of said work to be done according to the provisions contained in the or- 
dinance of the common council of said city, entitled "An ordinance for a levee 

on the left bank of creek," adopted on the day of , iS — , and 

according to the plans, maps, specifications, and profiles on file in the offices of 
the city clerk and city civil engineer of said city. Said work to be paid for in 
the manner set forth in said ordinance. The contractor will be required to en- 
ter into a contract to do said work, and to furnish all material, and to provide a 

bond as provided in said ordinance; and to complete said work within 

days from the approval of the contract and bond. 

R. L., 

City Civil Eng-ineer. 

, Ind., , iS— . 



For contract, see § 3162, which can be modified. 
12 



3151^ 3152] CITIES, [178 



Sec. 3i51<:. Jurisdiction of city ostended — Plans. 3. For the 
purposes herein provided, the jurisdiction of the city is extended 
four miles beyond the corporate hmits and the lands to be pro- 
tected may all be assessed with the benefits. And authority is given 
to the city to enter upon the lands and make surveys, doing no un- 
necessary damages, and to purchase, receive conveyances of, and 
hold the necessary lands for right of way and construction and 
maintenance. In case such lands can not be so obtained by con- 
tract, they may be condemned and taken by the city as railroad 
corporations are authorized by law to condemn and take real estate 
for right of way and other railroad purposes, except that the sur- 
veys, location, and plan of the levee, or a copy thereof, shall be 
filed in the recorder's office of the county, and in the city clerk's 
office; and no other map or profile shall be required; which sur- 
vey and plan shall be certified by the city clerk under seal, as the 
survey and plan adopted by the common council, or a true copy 
thereof. [El. Sup. § 749.] 

The law authorizing appropriations is §§ 3907 to 3910 of Rev. Stat. iSSi. 
Forms and instructions for §'S 3907 to 3910 can be found in 3 Works' Practice, 
p. 521, from No. 759 to 766 inclusive. 

Sec. Z151d. Clerk's duties — Sale of land. 4. The city clerk shall 
copy from the duplicate the lands and benefits assessed outside of 
the corporate limits of the city, and certify the same under the seal 
of the city, and deposit the same with the county treasurer in his 
office, and it shall be his duty to collect the same annually as re- 
quired by ordinance under this act, and pay the money to the city 
treasurer Avhen requested by him, deducting the fees allowed by 
law for collecting other taxes. And the duplicate required by this 
act, and said transcript filed in the county treasurer's offices, shaU 
be due notice of the lien of the taxes and benefits assessed. The 
county treasurer shall report to, and make settlement with the 
common council as to such benefits, the same as he is required by 
law to do with the board of county commissioners, and will adver- 
tise, and with the county auditor, sell the lands of delinquents as 
required by law for other delinquent taxes, and make certificate of 
purchase and conveyances as required by law, with like force and 
effect. [El. Sup. § 750.] 

Sec. 3151^. Sufficiency of duplicates — Plats. 5. The duphcates 
required shall describe the lands assessed with benefits com- 
petently, and the city civil engineer is required to m.ake ah neces- 
sary surveys and plats to furnish such description. [El. Sup. § 
751.] 

[1873, P- SS- Approved and in force March 6, 1S73.] 

Sec. 3152. Aid to roads, bridges, etc. 60. Any incorporated 
city, under this act, shall have power to borrow money, to sub- 
scribe to the stock of any plank-road, macadamized-road, or rail- 
road, running into or through such city; or to any bridge com- 



179] -^ID TO RAILROADS AND BRIDGES. [§3152 

pany organized under the laws of this or any other State, to con- 
struct a bridge across any river or water-course within or bordering 
on this State, w^here such bridge has its termini, or either terminus, 
within such city; or to pubhc improvements or pubhc works, — 
to make donations in money or bonds of such city to aid in con- 
struction of such roads or bridges or pubhc improvements or pubhc 
works, only on petition of a majority of the resident freeholders 
thereof: Provided, That said donations shall not be payable either 
in money or bonds until the roads or bridges or public improve- 
ments or public works, in aid of which it is given, shall be so far 
completed as to admit the running of trains from the point of com- 
mencement to such point or points as are designated in the peti- 
tion, in case of a railroad or railroad bridges ; or the passage of 
wagons in the case of other roads or bridges ; and, in case of public 
improvements or public works, upon the completion thereof. And 
when so far completed, it shall be obligatory on the common coun- 
cil of said city to contract and do whatever may be necessary to 
carry into effect the substantial meaning of such petition ; and the 
obligation herein enjoined may be enforced in the courts of this 
State having competent jurisdiction, on the application of any 
signer of such petition or president of any road or bridge company 
in behalf of which such donation may have been made, at any tim.e 
after said petition or petitions have been presented to such com- 
mon council. And for any debt created in pursuance of the pro- 
visions of this section, in carrying out the intentions of the peti- 
tioners aforesaid, the common council shall add to the duplicate of 
each year thereafter a levy sufficient to pay the annual interest on 
such debt or loan, with an addition of not less than five cents on 
the one hundred dollars, to create a sinking fund for the liquidation 
of the principal thereof; which fund, with all the increase thereof, 
shall be applied to the payment of such debt, and to no other pur- 
pose. 

1. As to cities having a voting population of over sixteen thousand, the 
provision as to sinking fund is repealed by section 3122. 

2. Under this section, mandate will lie against the city to compel the issue 
of bonds, where the petition and other preliminary steps have been duly taken, 
57 Ind. 152; 83 Ind. 502. 

3. The term "donation," as used in this section, means an absolute gift, 
without any condition or consideration, 56 Jnd. 476; 61 id. i. 

4. For note on bonds, see § 31 19. This statute is valid, 9 Ind. 74; 73 Ind. 
543; 52 Ind. 563; 29 Ind. 305; 22 Ind. 88. 

5. Those signing the petition may withdraxv their names at any time before 
the council acts upon the petition; and a reference of the petition by the council 
to a committee of its own members is not such an action thereon as prevents the 
withdrawal of the names. A petitioner who signs his name to a revioustraiice 
withdraws it thereby from the petition, 42 Ind. 125. After having been acted 
upon the name can not be withdrawn, 15 Ind. 395. 

6. This section does not authorize a subscription to a railroad company for 
the purpose of building machine shops, even though the amount given is to be 
returned ; and all such proceedings are void, 56 Ind. 476. The legislature can 
not authorize such a subscription, 20 Wall. 655; 106 U. S. 4S7; 113 U. S. i. 



§3152] CITIES. [180 

7. Before the common council can acquire jurisdicfioit to act under this 
statute to make a donation, the petition must be signed bv a *' majority of the 
resident freeholders " of the city, which includes all persons resident within 
the city and owning a freehold interest in land, all of whom must be counted, 
loS Ind. 74; and a petition for a 'mandate to compel the city to make the dona- 
tion must contain that allegation, loS Ind, 74; 57 Ind. 152; nor is the city es- 
topped, where it declines to follow the petition and adopts a resolution making 
the donation, from showing that the petition did not have the requisite number 
of signers, 57 Ind. 152. If the council decides that the requisite number has 
signed the petition, that finding is not final, 83 Ind. 502. A pet ition VySiS only 
necessary prior to 1869 to authorize a donation, and was not necessary to 
authorize a subscription, 29 Ind. 305; but such is not the case now, 83 Ind. 502. 

8. Bonds ^iVithout interest may be issued, even a single bond. The council 
has no power to fix a rate of interest, unless, at least, the petition of the resident 
freeholders ask that the bonds issued bear interest, 57 Ind. 152. 

9. The fact that one of the councilmen was a stockholder in the companv to 
be benefited, and thereby interested, it was held not to avoid the proceedings, 
57 Ind. 152; but afterwards it was ruled that if his vote was necessary to secure 
favorable action on the petition, such proceedings thus carried Avere a nullity, 
83 Ind. 502. 

10. A subscription in which the amount to be donated is left hlaiik when 
signed, can not be avoided by showing that such blank Avas filled up for more 
than vv-as really agreed upon. By such an act those signing authorize the one 
procuring their signatures to fill up the blank. If this objection can be raised, 
it must be before the covmcil, 57 Ind. 152. 

11. Tlie city may levy or enforce a tax for the collection of the whole amount 
of the interest whether overdue or not; and may add to such levy not less than 
five cents on the hundred dollars, to create a sinking fund to liquidate the prin- 
cipal of the debt. The levy is not illegal from the fact that it does not specify 
the proportion to be applied to the liquidation of each, and that is not ground 
upon Avhich to enjoin the collection of the tax, 59 Ind. 400. 

12. If a council has once acted upon a petition, it can not two years after- 
wards reverseW.'s, decision and grant the praver thereof. 83 Ind. 502. 

13. Any citizen and tax-payer may enjoin the illegal issue of bonds; but he 
can not enjoin their payment after thev are issued, unless the city could success- 
fully maintain a defense on the same ground upon which the injunction is 
applied for as against the then holder, S3 Ind. 502^ $1 Ind. i; 52 Ind. 563. 

14. The bonds in the hands of ?i bona fide purchaser stand upon the same 
footing as commercial paper, ~^2 Ind. 563; 15 Ind. 395; 83 Ind. 502; 61 Ind, i ; 
22 Ind. 18; 18 Ind. 93; 123 Ind. 41. 

15. In an action against trustees of a town, for surrendering and allowing 
bonds executed by a railroad and held by them to secure the payment of certain 
sums advanced to the company by a town, it was held that the trustees could 
not set up the lack of power or authority in the town to take such bonds or to 
make such a loan, 30 Ind. 4S5. 

16. Where the petition recited that the object of the donation was to enable 
the railroad to reach the city, so that its construction would enhance the value 
of the property of the petitioners, an answer to a petition for a mandate alleging 
-a'ant of consideration for such donation is insufficient, 57 Ind. 152. 

17. The donation mav be the ho?2ds of the citv, if the company is willing to 
take them as cash, 15 Ind. 355. They may be vad^de payable in Nevj Tork City, 
15 Ind. 355. The poroer to borrozv money includes the power to issue bonds in 
order to raise it, 15 Ind. 396. 

iS, If the city subscribes for stock, it is subiect to the same rules and condi- 
tiotis as B. private individual, 15 Ind. 395, and liable to the same extent, 74 Ind. 
297; R. S. 1881, § 3934. 

19, A contract for stock made by the mayor and adopted and ratifedhj the 
council is valid, 15 Ind. 395. 



I Si] aid to railroads and bridges. [§§3152^,3153 

20. The council has the power to determine upon the terms and conditions 
of the contract, 15 Ind. 395. Before operative the railroad company must 
acccft the offer, 22 Ind. 88. 

21. To entitle the railroad company to receive the money donated, the 
railroad need not be perfect in every respect; but it must be so nearly com- 
pleted that it may be properly and regularly used for transportation of freight 
and passengers, 73 Ind. 543. 

21. Property in citv or town within a township is liable for its proportion 
of a railroad tax voted by the township, 94 Ind. i ; So Ind. 14; 89 Ind. 54Q. 

[18S9, p. 205. Approved and in force March 7, 1S89.] 

Sec. 3152^. City may purchase stock in bridge company, i. 

Any city of this or an adjoining State is hereby authorized to 
purchase the shares of stock in any bridge company or corpora- 
tion owning a bridge across any stream forming the boundary hne 
between this and an adjoining State where either terminus of such 
bridge is within or adjoining such city; and all purchases of such 
shares of stock heretofore made by any such city are hereby con- 
firmed and made legal ; and in case any city shall have heretofore 
purchased four-fifths of all the shares in any such bridge company 
or corporation can not agree with remaining owners as to the 
price to be paid therefor, or can not for any cause obtain from 
such owners a valid title thereto, such city may condemn and ap- 
propriate such shares for public use, and all the assessments there- 
for shall be made by the city commissioners of such city. And 
upon such purchase of all the shares of stock as aforesaid, or 
upon condemnation and appropriation as aforesaid, the title to 
such bridge and the real and personal property of such company 
or corporation shall vest in such city, and such bridge and the real 
and personal property aforesaid shall be the public property of 
such city and shall not be subject to taxation while owned by any 
such city ; and such bridge shall be a public highway, free to all 
persons and vehicles, subject to such rules and regulations as may 
be passed by such city for the good government and protection 
and use of the same, and such fines for violation or neglect of any 
of the rules and regulations not exceeding one hundred dollars, as 
the city may deem proper. [El. Sup. § 623.] 

[1869 S., p. 97. Approved and in force May 4, 1869.] 

Sec. 3153. Aid to railroads, hydraulic companies, etc. i. Any 
city incorporated under the general laws of this State, upon peti- 
tion of a majority of the resident freeholders of such city, may 
hereafter subscribe to the stock of any railroad, hydraulic com- 
pany, or water-power running into or through such city, or near 
the corporate limits of said city, or to make, on petition of the ma- 
jority of the resident freeholders of such city, donations in money 
or the bonds of such city, to aid in the construction of any such 
railroad, hydraulic company, or water power, subject, however, to 
the limitations, direction, and restriction named in the provisos to 



§§3154.3155] CITIES. [182 

the sixtieth section of the act entitled ' 'An act to repeal all general 
laws now in force for the incorporation of cities, prescribing their 
powers and rights, and the manner in which they shall exercise 
the same, and to regulate such other matters as properly pertain 
thereto," approved March 14, 1867. [§ 3152.] 

This section is in force, S3 Ind. 502. Is all this section constitutional? See 
3152, note 6. 

[1S67, p. 33. Approved and in force March 14, 1867.] 

Sec. 3154. Jurisdiction beyond limits. 54. For removal and 
abatement of nuisances ; to carry out and enforce sanitary regula- 
tions; for the apprehension of disorderly persons, vagrants, common 
prostitutes, and their associates ; to exact license money from all 
persons licensed to retail intoxicating liquors by county or state 
authority; and to regulate all places where intoxicating liquors are 
sold to be used on the premises, — the common council have juris- 
diction two miles beyond the city limits. 

1. Other instances in -svhich a citj may exercise authority beyond its 
limits are found in § 3106, clauses 2, 4, 5, 11, 26, 45; §§ 31 15, 3266, 32S5. 

2. This section does not apply to cemeteries^ 28 Ind. 79; nor to houses of ill- 
fame, 38 Ind. 49; but it does to a liquor license, 109 Ind. 466; 118 Ind. 279; 120 
Ind. 483. 

3. The legislature has power to designate the limits over -which tlie juris- 
diction of a mvmicipal corporation shall extend, and its judgment upon the 
question is conclusive, 109 Ind. 466; 118 Ind. 279; 120 Ind. 4S3. 

4. An ordinance is valid which requires all saloons to be closed between 
II p. m. and 5 a.m., the screens raised, all obstructions removed, and all persons 
not owners or employed therein to vacate the premises, 125 Ind. 404. 

Sec. 3155. By-laws — Penalties. 56. The common council shall 
have power to make other by-laws and ordinances not inconsistent 
v/ith the laws of this State, and necessary to carry out the objects 
of the corporation, and to enforce the observance of all by-laws and 
ordinances, by enacting penalties for their violation not exceeding 
one hundred dollars for any oiTense; which maybe recovered in an 
action at law, with costs, as they may deem right and proper. 

1. This section is usually known as the "general Avelfare " clause. It does 
not empower the council to enact an ordinance to license and regulate the es- 
tablishment oi private Iwsfitals within the city, 71 Ind. 189. But under it the 
city "may regulate the storage and transportation of gunpowder; the manner 
of constructing buildings; the places where wooden buildings maybe built; the 
manner in which ashes shall be stored and disposed of;" and "may prohibit 
the storage of inflammable oils in insecure structures,' 85 Ind. 276; 26 N. E, Rep. 
184. So it may prohibit the storage of large quantities of straw (85 Ind. 279), 
or take down dangerous buildings within the populous part of the town, ico Ind. 
575, S. C. 50 Am. R. 830. So it authorizes the purchase of a fire-engine, 106 
Ind. 129; but not the appointment of a fire-board with power to control the 
chief of the fire department, 100 Ind. 15. 

2. Under an authority "to ordain and publish such acts, laws, and regula- 
tions as shall be needful to the good order of the citv," it was said that the city 
had the right to " establish all suitable ordinances for administering the govern- 
ment of the city, the preservation of the health of the inhabitants, and the 
convenient transaction of business within its limits, and for the performance of 
the general duties required by law of municipal corporations," 37 Me, 329. 



183] JURISDICTION AND PENALTIES. [§3^55 

3. Under such a clause a city may require sellers of meat to take out a 
license, 124 111. 359; may prevent the keeping oi hazvdy houses^ 11 S. C.288. 
Under authority "to maintain the peace, good government, and order of the 
city, and the trade, commerce, and manufacturers thereof, as the council may 
deem expedient," the keeping c/r« of stores^ shops, etc., on Sunday may be prohib- 
ited. 24 Mo. 94; 40 Ala. 725; 15 Ohio, 225; 44Ga. 204; 2 Strobh. (S.C.) L. 508, 530. 
Under " full power to pass such ordinances as the city council shall deem expedient 
for government of the citv," the saJc of liquors on Sunday may be prohibited, 2 
Tvlet. (Ky.) 3; 36 Conn. 215; but one to " secure the health, peace, and improve- 
ment of the city" does not authorize an ordinance/ry///Z'/7/?/'^ the keeping open of 
stores on Sunday, 10 Oreg. 139, contra, 82; Ind. 175. So under the usual clause 
a city may require the owner of a lot to clear the sidezvalk adjacent thereto of 
sno-L^', 16 Pick. 504; II Allen, 287; 14 Gray 252 {contra, 88 111. 554); to prevent 
the placing o'l s/iozvboards and signs on the. sidezvalks so as to obstruct them, 
or the carrying of placards and signs on the sidewalk for the purpose of dis- 
playing such cards, 145 Mass. 3S4. So a power to pass " salutary by-laws " with 
respect to the use of the streets, authorizes an ordinance regulating the removal 
of buildings, 4 Cush. 433. A clause authorizing the making of "all regulations 
which may be necessary or expedientfor the preservation of the public health" 
avithorizes an ordinance against feeding coxvs on distillery slops and selling 
the miilk of the cows thus fed, 43 Cal. 242. So a clause allowing the adoption 
of any ordinance that "shall be needful to the good order of the city " author- 
izes one preventing the mutilation or destruction of ornamental trees planted 
in the streets, 37 Me. 329. 

4. Under authority to pass "any other by-laws for the well-being of the city," 
a city may .prohibit saloons, restaurants, and other places of public entertain- 
ment being kept open after ten o'clock at night, 38 N. H. 426; 10 Ga. 532; 28 N. 
H. 176; 44 N.J. L. 605; 45 N.J. L. 318; 43 Wis. 488; or maj- confine the laundry 
business to a certain portion of the city, 69 Cal. 149. Power "to regulate the po- 
lice of the citv," it may authorize the arrest of vagrants, 11 Mo. 61; or impose a 
fine upon the owner of any avJmal found at large within the city, i Ln. Ann. 
385; (see67 Ga. 753; 32Tex. 258; 8 B. Mon. (Ky.) 433; 30III. 459; 9 Allen 266' 14 
Grav, 52;2i 111. 632.) Power to preserve peace and good order authorizes an 
ordinance punishing any one rescuing a prisoner from city oflficers, 32 Mo. 
392; 95 Mo. 618; but power to enact ordinances for the good government of the 
city does not authorize levying taxes of any kind, not even on retail liquor 
dealers. 7 Ired. (N. C.) L. 406"; 30 Ala. 461; 29 Wis. 307, S. C.9 Am. R. 576. 
Power to pass such ordinances as appear to the council necessary for the secur- 
ity of the city, empowers it to regulate the mode of keeping and the sale of gu7i- 
pozudcr within the city, 4 Ga. 509; 5 Ga. 561; or to prohibit laundrying in 
anything but a stone or brick building, 68 Cal. 294. Under the general welfare 
clause a city may prohibit cruelty to an animal, 95 Mo. 618. Power to provide 
for the general safety of the inhabitants empowers the council with authority to 
prohibit the tlirozving of dangerous articles from the upper stories of build- 
ings into the street or public places where people pass ; and even to establish 
fire limits and prevent the erection of vjooden buildings, i McMul. (S. C.) L. 
234; II Mich. 425, 2 Rowle (Pa.) 262; 12 Me. 403; 27 W. Va. 681 ; 98 111. 305; 
100 Ind. 575, 117 Pa. St. 326; 12 Lea (Tenn.) 121. Contra, 45 Tex. 312, S. C. 
23 Am. R. 60S. 

5. Under a power to regulate a calling the city may exact a license for the 
right to exercise it, 124 111. 359; 72 Wis. 184; 40 La. Ann. 41; but not to levy 
a tax on the gross receipts of a foreigii insurance company, 126 111. 276. Power 
to regulate authorizes power to license, 7 Ind. 86. Under power to pass or- 
dinances for the good rule and government of the city, it may reqwive elevators 
inside stores to be enclosed by a railing and closed by a trap-door after busi- 
ness hours each day, 15 N. Y. 502. Power "to prevent disturbances and dis- 
orderly assemblages, and maintain the good government of the city," authorizes 
it to give a bond for the loan of arms. 2 Hill (N. Y.) 434; 14 La. Ann. 37. 
Power to prohibit or suppress practices against good morals authorizes it to 
punish the use of profane language, 43 Cal. 478. PoAver to preserve the peace 
and quiet empowers it to prohibit "all disorderly shouting, dancing," etc., in 
the streets or public places, i Jones (N. C.) L. 436; 98 N. C. 412 ; 94 N. C. 880. 
The city may restrain the visiting of gambling houses, 'jG Cal. 5S7. Power to 



§3155] CITIES. [184 

pass by-laws to "improve the morals and order" of the city does not authorize 
it to punish the offense of keeping a house of til-fame, 54 la. 360, S. C. 11 Cent. 
L. Jr. 358, 37 Am. R. 209. Power " to prevent the introduction of infectious or 
contagious diseases, and to preserve the health of the inhabitants," does not 
empower a city to prevent the import, sale or dealing in sccotid-hand or cast-off 
garinents, 80 Ala. 579. The city has no power to prevent the renting of prop- 
erty to lewd women, 54 Tex. 388. Power to pass ordinances "for the good 
government of the place," authorizes a city to impose a fine for an assault and 
battery, 14 Ala. 400. 

6. Power to pass " in general, every other by-law or regulation that shall 
appear to the city council requisite and necessary for the security, welfare, and 
convenience of the city, or for preserving the peace, order, and good govern- 
ment within the same," authorizes the exacting of a liquor license, and to pro- 
hibit the sale if not taken out, 2 McMull. (S. C.) L. 233; 4 Strobh. (S. C.) L. 
241. Power to "regulate, restrain, and suppress shops and places for the sale 
of ardent spirits by retail," authorizes the city to forbid the sale anywhere, 4 
Denio, 341 ; 9 Ohio St. 290. Power to make all contracts necessary for its wel- 
fare, authorizes a city to contract for wrt/er-wor/^^, 28Ga. 50; see 45 Ga. 67. Power 
to provide a supply of water authorizes the exclusive grant to a company to 
supply tvater, 39 N.J. Eq. 367. Destructio?i of liqtcor under promise to pay, when 
Richmond (Va.) was evacuated, city held liable, 18 Graft. (Va.) 517; 15 Wall. 
429. Under power to pass by-laws to promote the general welfare and to pre- 
serve the peace, a city may fix the time and places of holding public markets 
for the sale of food, and make such regulations as may conduce to the public 
interest, 33 Pa. St. 202. The power to tax can not be inferred from the general 
welfare clause, i O. S. 268; 7 Ired. (N. C.) L. 406. 

7. "The power to make by-laws, when not expressly given, is implied as an 
incident to the very existence of a corporation; but in the case of an express 
_^r««i' of the power to enact by-laws limited to certain specified cases and for 
certain purposes, the corporate powers of legislation is confined to the objects 
specified, all others being excluded by implication," 33 N, H. 424, 430. "The 
city council is restrained to such matters, whether specifically enumerated or 
included under general grant, as are indifferent in themselves, such matters as 
are free from constitutional objection and have not been the subject of general 
legislation; or, as it is expressed in the charter, are not repugnant to the con- 
stitution or laws of the land," Dudley (Ga.) 30; 4 Ga. 509, 514; 2 Gr. (N.J.) 
222; II la. 399. Perhaps the true rule is that the enumeration of special cases 
does not exclude the implied power any further than necessarily results from 
the nature of the special provisions, unless a different intent is apparent, 2 
McMull. (S. C.) 233; 12 Me. 408; 28 N. H. 176; 38 N. H. 426; i Cush. 426; 18 
O. 523; 9 La. Ann. 44; 66 Ind. 396; 22 Fed. Rep. 701; 85 Ind. 276; 128 111. 
465- 

8. Under this clause the city can not exact a license from pawnbrokers: but 
it may compel them to submit for inspection, in order to detect the stolen goods, 
to the police all articles pawned with them, 26 N. E. Rep. 560. An act of 1891 
now permits a license, § 3232^. 

9. All by-laws or ordinances made to regulate a trade, occupation, or cer- 
tain class must fix the conditions expressly and intelligibly, and not leave them 
to the caprice of anj- one. They must be impartial and 'general, 63 Mich. 396 
(S.C.32 N.W. Rep. 72); 118U. S. 356; 40 Ken. 173; 26 N. E. Rep. 359; 143 
Mass. 598 (S. C. 10 N. E. Rep. 115); 24 Fed. Rep. 563; 117 Ind. 226; 107 Ind. 
502,509. Dill, Municp. Corp. §§320-322. 



185] TAXATION. [§3156 



ARTICLE 3— TAXATION. 

SEC. SEC. 

3156. General and specific taxes. 3iSS«. Temporary investment of specific mu- 
3156a. Cities and towns are not subject to gen- nicipal funds. 

eral road law. S^SO- Temporary loans. 

3157. Equalization — Fixing- rate — Refund- 3160. State tax law g-overns. 

ing. " 2>^boa. Time of paying city taxes. 

315S. Sinking fund tax. 

[1S73, p. 57. Approved and in force March 7, 1873.] 

Sec. 3156. General and specific taxes. 58. The common coun- 
cil shall have power to levy, and cause to be assessed and col- 
lected, in each year, an ad valorem tax of not more than one per 
cent, for general purposes, on all property subject to state and 
county taxation within such city, and also upon the stocks of all 
free banks, insurance companies, and other joint-stock companies 
doing business within such city ; the said tax to be assessed and 
levied upon the stock of each individual shareholder of said com- 
panies and banks, whether such shareholder reside within such city 
or elsewhere. The cities and incorporated towns through or into 
w^hich a railroad may pass may assess any railroad building, fixt- 
ures, and machinery connected therewith, within the city or town 
limits, on the same basis and the same manner that the like prop- 
erty of natural persons is assessed, and collect the taxes thereon as 
other taxes are collected ; but the rolling-machinery used in operat- 
ing the road shall be deemed to be embodied in the taxes by the 
mile. And also a specific tax on omnibuses, or any carriages and 
other vehicles used and run for passengers for hire, unless the same 
be licensed ; and on each dog owned by any resident of such city 
of not more than two dollars, and on any bitch owned by any resi- 
dent of such city of not more than five dollars; and also a poll-tax 
not exceeding fifty cents on every male inhabitant, sane and not a 
pauper, of the age of twenty-one years and not exceeding fifty 
years, residing therein : Provided, That any incorporated city having 
a population exceeding twenty thousand shall have power to levy, 
and cause to be assessed and collected, in each year, an ad valorem 
tax of not more than one and one-half per cent, for general pur- 
poses on all property within such city returned for taxation by the 
city assessor, and upon stocks of incorporations as before provided. 
There may also be levied and collected, annually, an additional tax 
to pay the whole interest of the public debt due from said city. 

1. Special levies: To pay public aid bonds^ § 3152; tvatcr-'cvorks bof/ds, 
§3283; school bonds^ §4490; special tax to hwy school supplies and erect school 
buildings, § 44^75 local tuition tax, § 4469, see also § 3126. 

2. City clerk^s duty with reference to tax duplicate, § 3070; treasurers 
duties, §§ 3079 to 3094. The office of city assessor has been abolished, § 3160. 

3. In making assessments and collection of taxes the city is now governed 
by the general tax law, §§ 3160, 3263, 3264. 

4. Bajik stock, see § 3254, notes. 

5. The section of the constitution (R. S. iSSi, § 193) with respect to a uni- 
form and eqvial rate of taxation, has no reference to cities and towns, 4S Ind. 
568. 



§315°^] CITIES. [i86 

6. The fax is limited in small cities to one ;pcr ce7it. only for general ;pur- 
:poscs, 79 Ind. p. 353; 55 Ind. 210; 22 Ind, 262, 

7. The citj has absolute power to tax all property within its limits; and this 
grant of power by the legislature is constitutional, 59 Ind. 225 ; 22 Ind. 262; 55 
Ind. 210; 79 Ind. p. 353. It may tax property recently annexed to pay a debt 
created previous to the annexation, 81 Ind. 5S2. The property of non-residents 
within the city is there taxable, 21 Ind. 335 (park). Unless a statute exempts 
agricultural land lying within the city, it is liable the same as platted terri- 
tory, 59 Ind. 225. The legislature has full power to exempt certain property, 
and to //wzz7 the power of the city to tax, 40 Ind. 491; iilnd.139; 7B.495; 3 Ind. 
43; 17 Ind. 48; 27 Ind. 332. Exemptions are construed strictly^ 18 Ind. 33. 
Choses in action held by an executor living within a city of any size, where the 
decedent resided outside the city limits at the date of his death can not be taxed 
by the city, S3 Ind. 211. 

8. The assessment of property illegally annexed \o a city may be enjoined, 
55 Ind. 576; 72 Ind. 161, In such an instance it must be shown that the tax 
duplicate 13 in the hands of the citj^ treasurer and he is threatening or proceed- 
ing to collect the tax, 72 Ind. 161, If the taxes are paid under coercion they 
ma}^ be recovered back; and a wife is not estopped to recover them back because 
of the fact that her husband listed the land without her knowledge, 112 Ind. 
344- 

9. Bonds of the United States can not be taxed bv the city, 23 Ind. 331 ; 33 
Ind. 338. 

10. A tax may be levied on the capital stock of a corporation, at its actual 
value, held by any resident of the State, 23 Ind. 331 ; 15 Ind. 150 ; even though 
such corporation is a foreign railroad company, 79 Ind. 351; 14 Ind. 27. 

11. The city can not fix the value of railroad property within its limits ; that 
is done by the state board of equalization; and when the value is affixed, then 
the city may assess it at that valuation, 108 Ind. 144, 153, § 6410. 

12. Under this section the common council may levy and enforce a special 
tax to pay the whole interest, whether overdue or not, on the public railroad 
debt of a city, 59 Ind. 400. 

13. When an owner of property already assessed^ elservhere, for state and 
county purposes, moved, with such property, into a city prior to June ist of 
the samie year, the property is liable for city "taxes also, 55 Ind. 210. 

14. A city or town may require that all dogs be kept up, to prevent the 
spread of hydrophobia, and authorize the marshal to kill them if they are not, 
27 Ind. 494. A tax on dogs is valid, 27 Ind. 62, 120 ; 79 Ind. 12. 

[1883, p. 62. Approved and in force March 2, 1883.] 

Sec. Zlb%a. Cities and towns not subject to general road law. 

38. Residents of towns and cities, subject to road work, shall not 
be subject to the provisions of this act, except that the respective 
boards of trustees of towns, and the common councils of cities, may 
require them to work within the corporate limits of their respective 
towns and cities; and tax levies to be made under the provisions 
of this act, by township trustees, shall not apply to or affect any 
property within the corporate limits of any city or town; and any 
tax levy to be made under this act, by the board of town trustees, 
shall not apply to any property outside of such towns. This act 
shall not affect any existing law which authorizes cities and towns 
to raise money, and make application thereof upon the streets and 
and alleys thereof; and cities and towns shall have the same power 
and authority over its streets and alleys as if this act had not been 
passed. [El. Sup. § 1580.] 



1 8/] TAXATION. [§ 3157 

Xo person who served in the Union army or navj during the war of the 
rebellion, and who was honorably discharged therefrom, shall be required to 
labor on the public highways of this State. [Approved and in force March 4, 
1S91. Acts 1S91, p. 7SJ 

[1S67, p. 33. Approved and in force March 14, 1867.] 

Sec. 3157. Equalization — Fixing rate — Eefunding. 59. The 

common council, together with the clerk and assessor, shall con- 
stitute the board of equalization of such city; and shall, within one 
month after the assessment-roll has been returned, at a stated meet- 
ing thereof (of which at least two weeks' notice shall be given), 
hear and decide all complaints in relation thereto, and shall equal- 
ize the same as right and justice may require, and shall have the 
power to equalize the valuations made by such assessor, either by 
adding to or deducting from any valuation made as aforesaid, such 
sum as to them, or a majority of them, may appear just and equit- 
able. The common council shall have power to refer the assess- 
ment-lists and all complaints in regard to any assessment to a com- 
mittee of said council ; which committee shall sit from day to day, 
and examine such lists and hear and determine such complaints, 
and shall make report thereon to the common council within ten 
days after the meeting of the board of equalization before men- 
tioned ; which report shall be accompanied by a statement of the 
total amount of the taxables returned by the assessor. The com- 
mon council shall then proceed to fix the amount and rate of tax 
to be levied on property and polls within such city; and the clerk 
shall have powxr, at any time, to correct erroneous assessments 
that shall be proven and made apparent to him ; and the common 
council may, at any time, order the amount erroneously assessed 
against and collected from any tax-payer to be refunded to him. 

1. All levies of taxes and incorporation of cities prior to March 14, 1867, 
were legalized by § 95 of this act. 

2. Appraisements by assessors in cities incorporated under the act of March 
9, 1857, made prior to March 3, 1859, are legalized by the acts of 1859 (p. 56); 
and assessments, levies, and collections of city taxes for the j^ears 1873 and 1874 
were legalized bv an act of 1875 (p. 148) ; and for subsequent years, up to and 
including the taxes levied in 1880, thev were legalized bv an act of 1881 (S., p. 
697.) 

3. The clerk is now governed by § 6416 in correcting erroneous assessments 
or listing omitted property 

4. The city board of equalization has been abolished, § 3160. The citv 
adopts the township or county appraisement. It can neither add to nor take 
away from that appraisement which is the basis for taxation. And this is true, 
even though the appraisement has been certified to the city clerk before the 
county board of review has met. Perhaps the council may, in such a case, adopt 
the appraisement as afterwards equalized by the county board, 63 Ind.421. 

5. The dutv to refund taxes erroneously assessed is mandatorv, 86 Ind. 
587, III Ind. 247; even though the tax-payer was negligent in iailing to use the 
means of knowledge he had to ascertain if they had been erroneously assessed, 
86 Ind. 587. Tax on bank stock erroneously assessed may be recovered back, 
III Ind. 247. The city is not liable to refund money paid at a tax sale because 
the purchaser failed to acquire title to or a lien upon the land sold for city taxes; 
unless the land was not liable for city taxation, or the taxes had been paid be- 



§§3158,3158^] CITIES. [188 

fore the sale, 98 Ind. 182; 84 Ind. 467; 29 Ind. 486. The fact that the assess- 
ment was made by the wrong officer is not enough to secure a refunding, 98 
Ind. 279. A judgment of a court refusing to enforce the purchaser's lien against 
the land sold does not conclude the city, nor alone render the city liable to re- 
fund the taxes, 98 Ind. 1S2. 

6. An injunction will not be granted to restrain the collection of illegal 
taxes if any part of them are valid, 81 Ind. 582 ; 84 Ind. 108. The complaint 
for the injunction must show that the taxes have been placed upon the tax dupli- 
cate and that it is in the hands of the treasurer for collection, 83 Ind. 493. 
Mere irregularities is not enough, 77 Ind. 371. Real estate can not be sold so 
long as there is personal property of the owner liable to be sold, 95 Ind. 156. 

7. The tax levy can not be made until after the county board of review- 
has acted, 82 Ind. 493. (See 14 Ind. 306, as to time within which levy must be 
made under an old statute.) 

8. An ordinance passed levying a tax after the limit allowed by law has 
been reached by a previous ordinance is void, 40 Oh. St. 56; 4 Oh. St. 670. So 
is an ordinance levving an amount which exceeds such limit both as to the 
amount within and without the limit, 41 Oh. St. 670; 40 Oh. St. 56. 

Tax Levy. 

Sec. I. Be it ordained by the common council of the city of that there 

is hereby levied the following amounts for the year 18 — on each hundred dol- 
lars of the assessed value of the property of this city, as returned for taxation 
by the township assessor and equalized by the board of review, for the obi'ects 
named, viz.: 

For general purposes $1 00 

For water-works bonds 10 

For railroad aid bonds 04 

For sinking fund 03 

For school-house bonds 02 

For special school fund 20 

For local school tuition fund 07 

Sec. 2. That on each male dog owned or harbored by any resident of the 
city there shall be levied the sum of $1.50; and on any bitch owned or har- 
bored by any resident of the city, the sum of $5.00. There shall also be levied a 
poll tax of fifty cents on every male inhabitant of the city, sane and not a 
pauper, of the age of twenty-one years and not exceeding fifty years, residing 
therein. 

Sec. 3. This ordinance shall be in force from and after its passage. 
[See § 3160a for resolution on payment in installments.] 

Sec. 3158. Sinking fund tax. 82. For the purpose of creating 
a sinking fund for the gradual extinguishment of the bonds and 
funded debt of any city coming under this act of incorporation, 
the common council thereof shall, annually, levy and collect, in ad- 
dition to other taxes herein provided, not less than half a mill on 
the dollar upon the taxable property in such city ; which shall be 
paid into the treasury and applied, by direction of the common 
council, to the extinguishment of the bonds and debts aforesaid, 
and to no other purpose whatever. 

See § 3156, note i. 

[18S3, p. loi. Approved March 5, 1S83, and in force June 5, 1SS3.] 

Sec. 3158<3:. Temporary investment of specific municipal funds, 

I. Municipal corporations of this State shall have the power and 



189] TAXATION. [§§3I59> 3160 

authority to temporarily invest their sinking fund, or any other 
specific fund held for any purposes whatever, in the bonds of the 
government of the United States, the State of Indiana, or any of 
the counties of Indiana, during such time as the said sinking funds 
can not be advantageously used in taking up or paying off the city's 
bonds or indebtedness, or said other specific fund can not be or is 
not used for the purpose for which it is intended. [El, Sup. 
§802.] 

[1S67. p. 33. Approved and in force March 14, 1S67.] 

Sec. 3159. Temporary loans. S;^. Loans may be made by a vote 
of two-thirds of the common council, in anticipation of the revenue 
of the current and following year, and payable within that period ; 
but the aggregate amount of such loan in any fiscal year shall not 
exceed the levy and tax authorized by this act for municipal ex- 
penses for the same year. 

1. See § 220, notes ^ on limitation of debt. Temporary investment in street 
bonds, see § 3392//. If an individual is appointed agent by the council to procure 
a loan by the sale of city bonds, he can not set up the illegality of the appoint- 
ment after he has procured the money by sale of the bonds, 17 Ind. 628. 

2. The pvirchase of real estate by a city on a credit of ten years is not a 
loan within the meaning of this section. In such an instance the city gets no 
money by loan or otherwise, but it gets the property purchased, and agrees to 
pay for it, 78 Ind. 192. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 3160. State tax law governs. 259. Cities shall be gov- 
erned by the provisions of this law in regard to the matters em- 
braced therein, so far as the same are applicable ; and the duties 
required by the terms of this act to be done by the county officers 
shall be performed by the corresponding officers of each city, in 
regard to the listing and valuation of property and the assessment 
and collection of taxes, and all matters pertaining thereto: Pro- 
vided, That all ci^ty taxes shall be paid on or before the third 
Monday in April in each year; unless the common council shall, 
by ordinance or resolution, determine otherwise, as provided by 
law : And provided, further, That the office of city assessor and the 
city board of equalization are hereby abolished and the assessment 
of real and personal property, as made and returned by the town- 
ship assessor, shall serve as the assessment for city purposes, and 
the proper city officers shall have access to the assessor's books 
and to the tax duplicates in the county auditor's office, for the 
purpose of transcribing therefrom a list of the property assessed 
as the same shall have been equalized by the board of review and 
the state tax board of tax commissioners. 

I. See § 6521^. A very similar provision was adopted on the i6th day of 
April, 1S81, § 3263, not applicable, however, to cities having special charters. 
In nearly every other respect the acts are identical in applying the general tax 
law to cities. The inference to be drawn from these two acts is that cities acting 
under special charters are not governed by the general tax law. So far as the 
tax sale is concerned, the city of Evansville is now governed by the general tax 
law, acts 1889, p. 343 ; El. Sup. § 788. 



§3i6o«] CITIES. [190 

2. Under this section, and in fact under § 3263, wherever the provisions of 
the general state tax law are applicable, the city tax law is repealed, leaving 
only such provisions of it standing as upon which there are no provisions in the 
general tax lav/. 

3. So far as the time of faymcnt is concerned, the city by resolution may 
direct that the tax be paid in semi-annual installments; but a resolution is 
necessary to authorize the collection in that manner, § 3i6o«. 

4. A purchaser at a city tax sale is entitled to the same penalty on the 
amount he pays as if the sale was by the county for state and county taxes, 85 
Ind. 481. The lien of city taxes is of equal rank and priority to taxes levied for 
state and county purposes. A purchaser at a tax sale made by the county offi- 
cers takes the land subject to the lien for city taxes existing thereon, if the land 
is of sufficient value to pay all taxes, but if the land is not of sufficient value 
to pay all taxes, then the sale first rightfully made will divest the lien for the 
other taxes, loi Ind. 326; 121 Ind. 180; 104 Ind. 498, 502. But when suit is 
brought by the State to foreclose its lien for taxes, a city or town tax is subor- 
dinate. See § 6491. 

5. The city can not now nor could it formerly appraise railroad property. 
See § 3156, note 11. See 21 Ind. 262. 

[1883, p. 30. Approved February 27, 18S3, and in force June 5, 1883.] 

Sec. S160(2. Paying city taxes in installments, i. Any city in 
this State by a provision contained in the ordinance or resolution 
fixing the tax levy for any year may allow the taxes so levied for 
general city purposes to be paid in equal semi-annual installments, 
the first half to be paid on or before the third Monday in April, and 
the second half on or before the first Monday in November : 
Provided, That in all cases where the first installment shall not be 
paid on or before the third Monday in April, the whole amount 
unpaid shall become due and be returned delinquent, and collected 
as provided by law ; and there shall be a penalty added of ten per 
cent, upon the amount of any installment not paid when due, which 
the persons or property assessed shall pay, together with cost of 
collection, and if such taxes remain delinquent at the succeeding 
first Monday in November, there shall be a penalty of six per 
centum added to all such taxes that became delinquent at the pre- 
ceding April and November settlements, and a penalty of ten per 
centum only shall be added to the current delinquency occurring 
on the first Monday in November. All poll or special taxes shall 
be paid at the same time, on or before the third Monday in April. 
In all cities which do not adopt and accept the provisions hereof 
taxes shall be paid and collected as now provided by law. [El. 
Sup. § 746.] 

1. When the county treasurer collects city taxes they are paid in install- 
ments, § 3225^. 

2. Payment in two installments can only be authorized when the general 
tax levy is made for the year; and then onlv in the ordinance making the lew. 

Resolution. 

All taxes hereby levied for the year 18 — , may be paid in equal semi- 
annual installments, the first half to be paid on or before the third Monday in 
April, 18 — , and the second half on or before the first Monday in November of 



191] IMPROVEMENT OF STREETS. [§3l6l 

the same rear, except all poll and all the special taxes, to ^vit: [Specif yuio- t]tcm\ 
\vhich shall be paid on or before said third Monday of April. 

[The above should be incorporated in the ordinance making the general 
annual levy.] 



ARTICLE 4— IMPROVEMENT OF STREETS. 

SEC. SEC. 

3161. Power over Streets. 3163. Cost, how apportioned, 

3i6irt. County commissioners — Bridges within 3164. Payment — Lien — Order without peti- 

in city. tion. 

3161Z'. Street grade for railroads. 3165. Payment, ho^v enforced. 

3162. Petition for street improvements. 3165a. Payment, how enforced on unplatted 

land. 

[1S91, p. 122. Approved and in force March 6, 1S91.] 

Sec. 3161. Power over streets. 6i. The common council shall 
have exclusive power over the streets, highways, alleys, and bridges 
within such city, and may prescribe the height and manner and con- 
struction of all such bridges, and to lay out surveys, extend and 
open new streets and alleys, and straighten, widen and otherwise 
alter those already laid out, and to make repairs thereto, to con- 
struct and establish sidewalks and crossings ; they may cause build- 
ings, structures or other things in the way of any street or other 
public improvement to be taken down, removed and appropriated 
upon the payment of damages as now provided by law ; they may 
enter upon, seize, appropriate, and condemn the right of way, or 
other lands of any railroad company, person, or corporation passing 
through such city for street or alley purposes, whether such lands 
be occupied and used or not, upon payment of damages as pro- 
vided under and pursuant to the provisions of an act entitled '*An 
act in relation to the laying out, opening, widening, altering, and va- 
cation of streets, alleys, and highways, and for the straightening or 
altering of water courses by cities of this State, and providing for 
the appointment of commissioners to assess benefits and damages, 
prescribing their duties and the m.ethod of procedure, and providing 
for the collection of benefits and payment of damages, and prescrib- 
ingthe duties of city officers in relation thereto, and providing rem- 
edies in such matters," approved March 17, 1875, and the amend- 
m.ents thereto. And no person residing in said city shall be required 
or compelled to work on any road without the city ; nor shall any 
property lying or being v/ithin the city be taxed for the purpose of 
working, opening, improving or repairing any road or bridge within 
the limits of said city ; and the common council may exercise all 
powders of township trustees, and the street commissioner, under 
the direction of the common council, may perform all the duties 
and exercise all the powers of tov/nship trustees and road super- 
visors in reference to a road labor tax of two days by each person 
liable to work on roads in townships, and shall be governed by 
the same rules and regulations in reference to the collection and 
enforcement -of the same ; or any person so liable to work may bo 



§3i6i] CITIES. [192 

discharged therefrom on the payment of one dollar and fifty 
cents per diem: Provided, That the common council may, by 
general ordinance, prescribe the time within which such labor shall 
be performed. 

STEPS OF PROCEDURE. 

The essential steps in a street improvement are as follows: 

1. Title to the street. The city must have the title to the street before it 
can proceed. 

2. Estahlislnnent of grade. The grade should be established by the city 
civil engineer, § 3073. To establish a grade for a street is an incidental power 
of the right to improve it. 

3. Petition for improvement. It is not essential if two-thirds of the mem- 
bers of the council order the improvement. § 3164. If not ordered bv a two- 
thirds vote, then a petition must be presented to the common council, and then 
a majority vote is sufficient, § 3162. 

4. Plans. Plans should then be prepared by the city civil engineer, and 
kept on file in his office. 

5. Resolution for improvement. The resolution should designate the street 
or sidewalk, between what two points the improvement is to be made, and if a 
sidewalk, which side of the street; the kind of improvement; either embody 
the plans of the city civil engineer, or adopt them by reference. It shoufd 
contain a direction for advertising, in a designated paper for bids, to be opened 
at a designated meeting of the council, § 3162. 

6. Resolution to contract. Contract must be let to lowest and best bidder 
who performs the condition of the advertisement. 

7. Execution of contract. By person authorized to do so on the part of the 
city, and the bidder. May be executed in duplicate; one to be kept on file in 
the clerk's office, and the other given to the contractor. The advertisement, a 
written bid and its acceptance put on record may constitute the contract. 

8. Estimates. These may be made by the engineer as the work progresses, 
and be reported to the council and be allowed, and collected, § 3164, § 3165, 
§ 3165a. When the work is completed, the engineer makes a final estimate, 
which the council allows and orders paid, § 3163, § 3164. There can be no esti- 
mate, however, for unplatted land, until the work is completed, § 3165^. 

9. Dejuand of payment. The clerk issues to the contractor a certificate of 
the allowance, usually, and he makes a demand of the person named therein 
whose lands have been assessed; but this is really not necessary, for the owner 
is bound to take notice of the estimate and pay it. 

10. Precept. In the case of platted ground, if the estimate is not paid 
within twenty days, the contractor files an affidavit with the clerk for a precept, 
Avho lays it before the council and that body orders a precept. The mayor 
signs and the clerk attests the precept, and delivers it to the treasurer, § 3165. 

11. Collection from platted g-round. Vvithin ten days after its receipt the 
treasurer serves the precept on the lot-owner assessed and demands payment; 
if he can not be found, then he publishes a three-weeks' notice in a weekly 
newspaper of the city, demanding payment within twenty days after the date of 
the last publication. At the expiration of ten days after said' twenty days, the 
treasurer levies the precept on the lot assessed, and advertises it three weeks in 
a weekly newspaper for sale. The sale is for cash; but if the contractor pur- 
chases the lot, he pays in cash only the amount bid in excess of his claim, ex- 
clusive of costs. The sale is without relief from appraisement laws, § 3165. 

12. Appeal. An appeal may be taken by the land -owner to the circuit 
court, at any time within twenty days after demand or publication on precept; 
in which event all proceedings by the city are stopped, and thenceforth are 
carried on in the circuit court, and unless the appeal is dismissed, the sale takes 
place under a decree of the court, by the sheriff. 



193] IMPROVEMENT OF STREETS. [§3l6l 

13. CoVlection from vnplatied land. If the owner of unflattcd lands fails 
to pay for a period of sixty days after the work is completed and the final esti- 
mate made and approved, the contractor must proceed m the circuit court of 
the county to collect the amount due. He can not proceed by precept. The 
sale is without relief from valuation or appraisement laws. 

14. Certificate, of sale. Upon a sale on precept, the treasurer issues a cer- 
tificate of sale to the purchaser, § 3165 ; and upon a sale on a decree of the 
circuit court, the sheriff. 

15. Redemption. Upon a sale in either method, the owner of the lot or 
land may redeem therefrom within a year, § 3165, § 3165(7. 

16. Deed. When the sale is on precept, the city treasurer issues the deed, 
§ 3165, if under decree of court, the sherifl:'', § 3i65rt. 

17. Title. If all the proceedings are regular, the grantee under the deed 
gets a valid title, free from all liens except such as the city or county holds, 
§ 3165. It is subject to a school fund mortgage. 



NOTES AND FORMS. 

1. For a change of grade and liability, see § 3073, notes 7 and 8; sewers^ 
§ 3106, clause 43; for Barrett Law, § 3292(7; for establishment of grade., § 3073? 
notes 4 to 6; for liability for consequential damages^ § 3073j ^^ote i. Working out 
road tax., §§ 3156, 315617. Removal of obstructio7is, § 3106, clause 18. Regulating 
bridges and culverts, § 3106, clause 40. National road is a street in Indianapolis, 
2lnd. 147; 29 Ind. 329. Tur?ipikes vjithin a city, see § 3106, clause 18, //o^^? 7. 
Railroad^ § 3224^. This statute is constitutional., and confers plenary power., 

6 Ind. 237; 23 Ind. 381. Ordering an improvement is a judicial act., for which 
the city is not liable; but it may be liable if the work is constructed negligently, 
25 Ind. 512; 26 Ind. 17 ; 36 Ind. 90; 100 Ind. 210. 

2. The power to change a grade or order an improvement is not exhausted 
by the fact that the grade has once been changed on the street previously im- 
proved; X\i^ poiver is a continuing one, 17 Ind. 267; 34 Ind. 140; 24 Mich. 322; 

7 Bull. 79; II Bull. 145. 

3. City property is liable for assessments for free gravel roads., 104 Ind. 
195- 

4. This section does not authorize the improvement of a market-house at 
the expense of adjacent property holders, 106 Ind. 66. A city has no power 
to make assessments on adjoining property, except as authorized by its charter., 
from which no substantial departure can be made, no Ind. 259. 

5. Streets and alleys are highways., 48 Ind. 178; i B.43,48; 4 B.234; 7 Ind. 
9; 21 Ind. 277; but every highway is not a street, 7 Ind. 9; 31 Ind. 356, A side- 
walk is a part of the street, 73 Ind. 185; 100 Ind. 242. See § 3162, note 33. 

6. The right to use and enjoy a street is an appurtenance to a lot abutting 
upon it, and an injury to such an appurtenance is an injury to the lot, 9 Ind. 
467; 16 Ind. 441. The owner is entitled to have the street open to its full width; 
and without proof of special, is entitled to nominal damages, 7 Ind. 9, 38, 479. 
But he must show that the additional burden on the easement caused an injury, 
122 Ind. 344. If an abutting land-owner consented that a railroad might occupy 
a street, he can not enjoin it from so doing nor recover damages therefor, 122 
Ind. 344. 

7. The city can not authorize a railroad company to lay its track in the 
street or in an alley Avithout paying the abutting lot-owner all damages he 
thereby may sustain, 9 Ind. 467 ; 48 Ind. 178 {contra^ 13 Ind. 353) ; 49 Ind. 296; 
50 Ind. 127; 37 Ind. 489; 74 Ind. 29; 122 Ind. 344; 123 Ind. 136; 26 N. E. 
Rsp. 759. See§3224f'; 125 Ind. 476, 412. Not even the legislature can authorize 
such use, 7 Ind. 38, 479; 49 Ind. 296. It is otherwise where the city owns the 
fee of the street, 41 Ind. 364; but in this State the abutting lot-owner owns to 
the center of the street, 48 Ind. 178; 9 Ind. 467. A city or town in granting the 
right to a railroad to occupy a street exercises a power delegated to it by the 
sovereign, and is not liable for exercising such power, 122 Ind. 344. But if an 

13 



§3i6i] CITIES. [194 

abutting lot-owner stand by and let the company build its road-bed and lav its 
track in the street, he can not then enjoin nor eject the company, although he 
may recover whatever damages he has sustained, 125 Ind. 476, 509, 412 ; 113 Ind. 
124, 233. It' the company has assessed and paid damages to the abutting lot- 
owner, it may lay more than one track in the street, so long as the access to the 
abutting property is not entirely thereby cut off, 26 N. E. Rep. 759. The city 
may, however, grant permission to a railroad company to lay its track in the 
street; and such railroad must then procure the consent of the abutting lot- 
owner, or have his damages assessed and paid. But the city can not authorize 
the railroad to obstruct the street, 108 Ind. 113; 37 Ind. 489; 7 Ind. 479. The 
city may grant permission to a railroad company to occupy the street on condi- 
tion that it will fill it up and improve it; and if the company does not fill and 
im-prove the street in 'accordance with the terms of the condition, the city 
may do so and recover of it the cost of such improvement, 34 Ind. 304. But a 
street railway granted the privilege by the city (§ 4143) is not an additional 
burden on the easement, 78 Ind. 261. 

8. The city has such a qualified possession that it can not maintain an ac- 
tion quare clans urn /regit for an injury thereto, i B. 87. 

9. The city can not divert the 7ise of a street to private purposes, 73 Ind. 
185; 7 Ind. 38; 56 Ind. 139; nor surrender the street to a mere licensee, 79 Ind. 
446. It can not authorize the placing of a huckster's stand, of a permanent 
character, in the street, 73 Ind. 185. See § 3106, clause 18, notes. 

10. The right of the city to control the street not only extends over its 
surface, but extends up indefinitely, and it may cause the removal of over- 
hanging obstructions, such as cornices of buildings, 45 Ind. 429 ; 36 Ind. 522. 
See 29 Cent. L. Jr. 428. A city must own ground for street purposes before 
it can legally enter upon it to improve, 11 Oh. St. 227; but it may obtain title 
pending proceedings, 9 Rec. 727. 



DEDICATION AND ADVERSE USER. 

11. The execution and recording of a plat amounts to a dedication of the 
streets and alleys to public use, 55 Ind. 240;. 16 Ind. 451 ; 8 Ind. 378; 15 Ind. 
201 ; I B. 43 ; 4 B. 234; 37 Ind. 229. Commissioners in partition may make the 
dedication, loi Ind. 200. And where a sti-eet was used and occupied by a canal 
for a long time, and then abandoned it, it was held that the person executing 
the plat Avas not entitled to such street, 55 Ind. 240. The dedication of a street 
may be proved by the recorded plat, together with public user, by sale of adjoin- 
ing lots by the proprietor, by proof of parol dedication accompanied by public 
user, by proof of a taking by lawful authority for the use of the public, or by proof 
of acts of the owner evidencing dedication, such as selling lots on opposite sides 
of a strip of land suitableforastreet and standing by and seeing the public use it as 
such, 15 Ind. 201 ; 16 Ind. 362 ; 8 Ind. 378 ; 123 Ind. 136, 196. The original owner 
can not revoke a dedication, 7 Ind. 38. A dedication may be proved bv parol 
evidence, 7 Ind. 641; 2 Ind. 420; 2 B. 290; loi Ind. 200; 123 Ind. 136, 196. But 
where the intent is expressed and evidenced by a recorded plat, the intent as 
expressed in such plat can not be contradicted by parol, 123 Ind. 196. Whether 
the plat contains an express dedication of a strip to the public as a street, is a 
matter of lavj for the court, 123 Ind. 196. A dedication of a street is a dedica- 
tion to the public, and not to the city or town, 123 Ind. 196. If the owner of 
land plat it, and record the plat or sell lots Avith reference thereto, andtiponthe 
plat he designates certain portions as streets and alleys, declaring in unequivo- 
cal language that he donates the fee-simple of such streets and alleys to the 
public, the fee thereof vests in the public; but if he merely designates certain 
portions as streets and alleys the fee remains in the owners of the abutting lots, 
48 Ind. 74; loi Ind. 200; 123 Ind. 136, 196. A private way can not be changed 
into a pulslic "way, however long it may be used by the public, without his con- 
sent, loi Ind. 200. Dedication may be implied as against a married woman, 
loi Ind. 200. 

12. In order to show a dedication of ground for a street, alley, or public 
place, an intent to dedicate is essential, 8 Ind. 174, 378; 12 Ind. 620; 37 Ind. 



195] IMPROVEMENT OF STREETS. [§3l6l 

320; 60 Ind. 620; loi Ind. 201 ; 123 Ind. 136; 26 N. E. Rep. 676. Whether or 
not the owner intended to dedicate the ^a^round for a street must be determined 
bv his acts and statements explaining his conduct, in connection with all the 
circumstances throwing light upon the subject, and not from what he may sub- 
sequently testify as to his real intentions in relation to the matter, 36 Ind. 330. 
A clear intention to devote the ground claimed to a public use must be shown, 
in order to make it a dedication, 12 Ind, 620; 66 Ind. 177; 123 Ind. 136, 196; but 
that intent may be implied from his acts, 16 Ind. 362 ; or his acts may be shown 
to rebut any implied intent, loi Ind. 200; 76 Ind. 244; but not what he may say 
after the dedication is complete, 123 Ind. 136. In a complaint for an injunction 
to prevent a city from using a strip of land as a street, it must not only shov/ 
that the strip was not granted or condemned for a street, but that there was no 
implied dedication, 91 Ind. 493. 

13. The user by the public to make a dedication must have been a user ad- 
verse and exclusive of the use and enjoyment by the proprietor, and not a mere 
use by the pviblic under and in connection with its use by the owner in any 
manner desired by him, 30 Ind. 3S9. By permitting the way to be used as a 
public highway, and standing by and seeing improvements put up with refer- 
ence thereto, the owner may estop himself to claim it as his own private ground, 
51 Ind. 201 ; 42 Ind. 276; 15 Ind. 226; 52 Ind. 309; 8 Ind. 425; 78 Ind. 90 ; 37 Ind. 
229; 25 Ind. 352; 66 Ind. 177; 99 Ind. 53; 96 Ind. 31 ; 107 Ind. 591. §5035 of R. 
S. 1881 is not applicable to a city or town, 103 Ind. 349. User for tvjenty years 
with the knowledge and consent of the owner is a good dedication; or for such 
a length of time that public accommodation and private rights might be ma- 
terially affected by the interruption or enjoyment, thereby raising a f resump- 
tion of dedication by the owner. User, however, for a considerable time, even 
Avith the knowledge of the owner, does not create a presumption of dedication, 
unless the use is with his consent. A presumption of dedication arising merely 
from presumption may be rebutted, 109 Ind. 366; 78 Ind. 90; 76 Ind. p. 254. 
See 15 Ind. 226; 10 Ind. 219; 25 Ind. 352; 51 Ind. 201 ; 52 Ind. 309; 60 Ind. 364; 
66 Ind. 177. Mere acquiescence, however long, in thepul3lic's using a road across 
a vacant lot will not amount of itself to a dedication, 103 Ind. 349. The uses must 
be adverse to and not by the permission of the owner, no Ind. 509. The public 
may even acquire a right of way across land set out for a public square, 91 Ind. 
333. Even though a way terminate on private property, it may become a pub- 
lic highway by dedication, 89 Ind. 29S. If the user is interrupted, it must be- 
gin again anew, no Ind. 509. 

14. So far as the proprietor of the land and the city is concerned, a dedica- 
tion may be completed without any act of acceptance by the public ; but in order 
to make the citv liable to repair the highway, there must be such an acceptance. 
This acceptance must be by the proper or authorized public authorities. Such 
acceptance may be express and of record, or implied from repairs made and 
ordered or knowingly paid for by authority which has the legal power to adopt 
the street, or from long user by the public, 16 Ind. ^41, 451 ; 78 Ind. 90. Pv;blic 
work upon a road is not necessary to make the dedication complete, 86 Ind. 53. 

15. The right of the public to a street can not be taken away bj' adverse 
occ-upation or user by a private individual; 79 Ind. 446; 92 Ind. 107 ; 56 Ind. 139 ; 
46 Ind. 15 ; but a city may abandon a street, alley, or public place, although mere 
permissive possession of a part of a street lor the statutory period of limitation 
will not confer title, 79 Ind. 446; 25 Ind. 531. But adverse possession of a part 
of a street during the time the dedication is running may prevent a dedication 
of the part occupied, 26 N. E. Rep. 676. Yet where the lines of a street have 
been practically established by the occupancy and improvement of lots border- 
ing upon it, and the city authorities have recognized the correctness of the lines 
so established by permitting the owners to so occupy and improve their prop- 
erty, and have acquiesced in it for a considerable length of time, and to such an 
extent that to change the lines would work great wrong to the owners, and dis- 
turb long established lines and possession, the city will be estopped from dis- 
turbing the lines so practically established, although an accurate survey shows 
that they Avere wrong according to the plat, and that the lots as occupied ex- 
tend into the street as originally established, 46 Ind. 15. One who donates a 
portion of his land for use as a way of travel for his o'vn convenience and ac- 



§ 3i6i] CITIES. . [196 

commodation^ "will not be deemed to have dedicated it to the public simply be- 
cause the public also use the way with the land-owner's permission. Such an 
instance is lajid arou7td a railroad depot. Thus a railroad proposed to dedicate 
a strip of land to the public for a street, if the city council would vacate a cer- 
tain alley. The city rejected the offer of exchange by failing to act thereon, 
but assessed the benefits to the company growing out of the vacation of the 
alley at a certain sum, v>-hich sum was paid by the company, and the company 
curbed and paved the strip it proposed to donate, so that the public could ob- 
tain ingress and egress to its depot. It was held that the strip offered to the 
citv VN'as not dedicated to the public, but was the property of the company, 125 



Additional Note. 

16. Common la-v dedicatio?t to be valid requires an intention to and an ac- 
tual dedication on the part of the owner, and an acceptance by the public, all of 
which may be established by the acts of the parties and the surrounding cir- 
cumstances, 8 O.S.440. 

17. Intention of the o'vncr may be shown bj' a defective dedication under 
the statute, 8 O. S. 440; i Disney, 401 ; 3 O. C. C. 313. Acquiescence by the 
owner in the vise of a public road across land for less than tAventy-one years is 
evidence tending to prove a dedication, 11 O. S. 274. Acceptance of lots laid 
out in a subdivision in partition, in which streets are declared by commissioners 
to be dedicated, may estop the parties from denying the dedication, 19 O. S. 238 ; 
3 O. C. C. 313. Dedication of a strip of land for a street on condition that an 
adjoining owner will dedicate a like strip, together v\dth user by the public for 
eighteen years, vvill perfect the dedication, although the adjoining owner never 
dedicates his part, i C. S. C. R. 228; and where an owner dedicates a street on 
condition that he shall be exempt from charges for improvement, the dedica- 
tion takes effect, but the condition does not, 31 O. S. 506. Acceptayice by the 
public may be shown by long user, i Disney, 401; i C. S. C. R. 22S ; 3 O.C.C. 
313; or by the public authorities recognizing a street bv name and ordering its 
improvement, 19 O. S. 238 ; or by entering into a contract with a railroad, pro- 
viding for its improvement, 36 O.S. 631; or by establishing a street railroad 
route over it, under circumstances which estop the owner of the land from dis- 
claiming the existence of a street, 17 Bull. 265. But use, by the corporation, of 
land which it owns in fee for forty years for a specific purpose, will not consti- 
tute a dedication thereof for that'purpose, 18 O. S. 563. 



DUTY TO KEEP IN REPAIR. 

iS. The plenary and exclusive power over streets carries with it a corre- 
sponding djcty to keep the streets in repair ; and if any one is ijijured, without 
neglect contributing to the injury, by reason of a defect in a street, which it was 
the duty of the city to repair, such city will be liable in damages to the person 
injured, 55 Ind. 250; 57 Ind. 192; 43'lnd. 474 ; 11 Ind. 5 ; 70 Ind. 65 ; 74 Ind. 
520; 71 Ind. 5; 45 ind. 429; 83 Ind. 76, 271 ; 77 Ind. 29; 100 Ind. 396. The city 
owes to the public the duty to keep them in a safe condition for use in the 
usual mode by travelers, and are liable in a civil action for special injuries re- 
sulting from a neglect to perform its duty. And this is even true of a street 
that has never been improved, 83 Ind. 76, '261 ; or where a horse, without fault 
of his driver, takes fright and runs azvay, and the driver is injured by reason of 
a defect in the street, 79 Ind. 308. The city must not only keep the streets in a 
fit condition for travel in the day-time, but also for travel in the night-time, 76 
Ind. 49S; 112 Ind. 451, 124 Ind. 79 (running to a fire) ; 125 Ind. 522. Yet the 
fact that a pavement is uneven, or the bricks have been displaced by the action 
of the elements, does not necessarily render the city liable, if the defect could 
be readily discovered and easily avoided bv the person exercising due care, or 
if the defect be of such a nature as not of itself to be dangerous to persons so 
using the walk, 112 Ind. 133 ; 106 Ind. 305 (plank three inches high) ; 99 Ind. 10 
(box one inch high). So even a blind person may recover damages for injuries 
sustained by reason of defects, 76 Ind. 291 ; 26 N. E. Rep. 882. 



19/] IMPROVEMENT OF STREETS. [§3I^I 

19. So the city is liable even if the defect was caused by the act or omission 
of a third f arty, of vvhich the city had actual or constructive notice, 77 Ind. 29, 
43 Ind. 574; 100 Ind. 396; 45 Ind. 429; 47 Ind. 391 ; 66 Ind. 136. So the city is 
liable if the defect was caused by the act of its officer, 102 Ind. 375; 92 Ind. 
213; 86 Ind. 323 ; and is even liable to its o-vvji officers and servants^ 96 Ind. 51. 
Any one placing an obstruction in a street or rendering it defective, is liable to 
the city for the amount of damages the injured person is entitled to and recov- 
ers of it, 107 Ind. 475 ; not what he does recover, but both what he is entitled to 
and does recover, unless the city serves upon such person notice of the pendency 
of the action when brought and requests him to assist or take charge of the de- 
fense, in which event such person will be liable even to the city in the full 
amount of damages and. costs, regardless of the extent of the plaintiff's injuries, 
85 Ind. 384; 87 Ind. 77; 57 Ind. 192; 79 Ind. 547; 85 Ind. 384; 2 Black (U. S.) 
418; 4 Wall. 657 ; 4 Cush. 275, 277, 49 N. Y. 657 ; 72 N. Y. 65; 47 N. Y. 475 ■ 
9 Allen, 17; ro Gray, 496; 109 Mass. 2S3 ; loi Mass, 103; 102 Mass. 341 ; 122 
Mass. 100; 34N. H.179; 30 Conn. 535; 54 Me. 45; 38 la. 427; 52 111. 161 ; unless 
the city itself was a VN-rong-doer between itself and the author of the defect or 
nuisance, 23 Pick. 24.1 But a lot-owner is not liable to a person injured, nor 
even to the city because it has had to pay the injured person damages merely 
because the sidewalk adjoining such lot gets out of repair and so remains for 
any length of time ; he is liable only when he by his act creates the defect, 87 
Ind. 77 (ice about a pump). 

20. The city can not avoid liability by showing that the defect was occa- 
sioned in the construction of public works in the street over which an independent 
contractor had charge, and that it was his negligence that occasioned the injury, 
70 Ind. 65; 57 Ind. 191. See jiote ^Z- ^^ there are several joint wrong-doers, 
one can not recover off the other on the ground that he has paid the vvhole 
amount of damages, 30 Ind. 53. But where a city orders a street to be im- 
proved, and the abutting lot-owner undertakes and performs it so negligently 
that a third person is injured, the city is not liable, unless the work was in- 
trinsically dangerous, or the city authorities were in some way negligent, 112 
Ind. 451. But if a person constructing public works in a street observes a de- 
gree of care proportionate to the danger, and is consequently without fault, he 
can not be held responsible for accidental injuries, because he has not failed in the 
observance of his duty, 85 Ind. p. 38S ; 81 Ind. 166. He may, however, be liable 
for a failure. to properly guard an excavation, if the absence of guards causes the 
injury, 85 Ind. p. 387 ; 112 Ind. 451; and for negligence in making the excavation, 
89 Ind. 503. An_y one creating a nuisance in a street is liable to another injured 
thereby, 7 Ind. S3. 

21. Where the defect is caused by a third party, or has recently occurred, 
the city must have notice of it to render it liable, 74 Ind. 378; 73 Ind. 367; 112 
Ind. 576; 43 Ind. 574. If the defect has existed a sufficient length of time for 
the officers of the city to have an opportunity to learn of and repair it, that will 
be considered the equivalent of notice, or constructive notice, 74 Ind. 37S ; 91 
Ind. 382; 86 Ind. 414, 462; 112 Ind. 576; 72 Ind. 196; 100 Ind. 396. One hour 
and three quarters is not enough to charge it with notice, 112 Ind. 576. In an 
action against the city for injuries caused by a defect in the street, either actual 
or constructive notice of such defect to the city must be shown by the plaintiff", 
100 Ind. 396; 73 Ind. 367 ; 103 Ind. 41; but notice to the street commissioner, 
73 Ind. 367; or to the mayor, 123 Ind. 334; or to a councilman of the city is 
sufficient, 74 Ind. 378 ; 124 Ind. 482. The complaint must either show that the 
city had notice or ought to have taken notice of the defect, 98 Ind. 467. It may 
be shown, when the defect is a hole in the street, that other persons stepped into 
it, to show notice, 119 Ind. 368. 

22. Negligence \x\i\\Q \)Q.r%or\ \xv]\xxQ.^ contribiitin<z to the injurv is a com- 
plete defense to an action by him against the city for damage^ occasioned by 
such injury, however guilty of negligence the city may have been, 77 Ind. 322; 
42 Ind. 339 ; 57 Ind. 86; 83 Ind. 261 ; 90 Ind. 545 ; 69 Ind. 33; 58 Ind. 224 ; 79 
Ind. 547; 12 Ind. 264; 7 Ind. 83; 10 Ind. 40; 12 tnd. 515. Thus a person know- 
ing that an obstruction is in a street may not pass the place when in conse- 
quence of the darkness of the night or of the rise of water over the street he 
can not see the obstruction, except at his own risk, 2 Ind. 5S6. But "knowledge 



§3i6i] CITIES. [198 

that there is a defect in a highway, making it dangerous to travel upon it, does 
not itself make it negligence to use the highway carefvilly and cautiously. 
Knowledge of the existence of the dangerous place does, however, make it in- 
cumbent upon the traveler to use care and caution proportionate to the danger 
which he knov»-s lies in his way," 75 Ind. 400; 90 Ind. 545; 112 Ind. 538; 124 
Ind. 4S2 ; 26 N. E. Rep. 593. A person may, therefore, travel on a defective 
highway which he knows to be dangerous if he uses care proportionate to the 
danger he encounters by reason of the defect or obstruction, 99 Ind. 10; 75 Ind. 
400 ; 77 Ind. 29; 82 Ind. 147; 83 Ind. 76, 326; 86Ind.iii; 90 Ind. 205, 445 ; 93 
Ind. 287; 89 Ind. 48; 94 Ind. 72 ; 112 Ind. 113; i23lnd. 5S1; 124 Ind. 482. A 
direct averment in a complaint that the plaintiff was injured without his fault 
or negligence is sufficient to show that he was not guilty of contributory negli- 
gence. Where it alleges that the injury occurred without the fault of the plaint- 
iff, it Avill be sustained, unless it clearly appears from the facts specifically 
stated that there was negligence on the plaintiff's part Avhich contributed to the 
injury, 122 Ind. 538; 124 Ind. 4S2. A city, however, is not liable to one who 
sustains an injury by reason of a defective sidewalk, if the latter could hare 
avoided the injury hy looking, and shows no excuse for failing to look, 117 Ind. 
324. "Yh-Q. CO nczir ring fault of 11' e driver of the vehicle in w^hich the plaintiff" 
is riding will not defeat his action, 122 Ind. 39; 116 Ind. 121; 116 U. S. 366; 105 
111. 364, S. C. 44 Am. R. 791 ; 113 Pa. St. 544, S. C. 57 Am. R. 4S3. 

23. '"A city is not en ins2irer against accidents upon its streets and sidewalks. 
It is simply required to keep its streets and sidewalks in a reasonably safe con- 
dition for persons traveling in the usual modes by day and night, using ordinary 
care. A man may stumble and fall anywhere, in a house or in a street, but be- 
cause he happens to fall in the street, it follows by no means that the city is re- 
sponsible for the injury he receives. There are slight inequalities in sidewalks 
and other trifling defects and obstructions against which one may possibly 
strike his foot and fall, but if injury might be avoided by the use of such care 
and caution as every reasonable and prudent person ought to exercise for his 
own safety, the city would not be liable," 99 Ind. 10 ; 43 Ind. 574; 6 Cush. 524; 

4 H. & N' 781 ; 56 111. 270; 77 N. Y.83 ; 100 Mass. 255. (The city can not de- 
mand a bill of particulars in an action for the injuries sustained, 125 Ind. 323.) 

24. Dangerous excavations along the side of a street must be guarded by the 
city ; and even those in oXo^^e proximity to the end of the street, 74 Ind. 520; 77 
Ind. 29; 103 Ind. 32S; 108 Ind. 530; 43 Ind. 574; so a bridge over a.n alley, nar- 
rower than the sidewalk, unlighted and unguarded, may render the city liable, 
125 Ind. 522. 

25. Tiie city is also liable for defects in bridges, vvithin its limits, causing in- 
juries, 42 Ind. 339; 55 Ind. 250; 74 Ind. 378; 87 Ind. 509; and even for crossings 
constructed by private persons, 100 Ind. 396; or for bridges built by the countv, 
119 Ind. 196, for the county is not liable even though it undertake to repair 
such bridge, 26 N. E. Rep. 58. The city is not bound to provide a bridge strong 
enough for a traction engine, 26 N. E. Rep. 42. 

26. It is the duty of the city to see that building materials or other obstruc- 
tions in the street are properlj- guarded -or protected by lights, barricades, or 
such other means as may be necessary to render travel reasonably safe, 71 Ind. 

5 ; 45 Ind. 429; 57 Ind. 192; 70 Ind. 65. 

27. A city, as a general rule, is not liable for the negligence of an z;?<f£?- 
pcnde}it contractor, "jc) Ind. ^()2; 64 Ind. 345. But see 70 Ind. 65 ; 102 Ind. 372. 
Nor is it liable for the act of any one making an tmlaxvful use of the street, such 
as coasting therein, 88 Ind. 33o;"'85 Ind. 130. Nor is the city liable even though 
it by ordinance permit coasting in a parti<:ular street, 53 Mich. 98; 88 Ind. 330. 
A city may, by mandate, compel a railroad company to lower or raise its track 
so as to conform to the established grade of 3 street, and to render it safe for 
travel, 37 Ind. 489. 

28. A railroad company, under the general railroad law, is liable to build 
bridges at all street crossings over its track wherever it runs through the city 
so far below the surface as to render them necessary; and where they can not 
be built, it must build street crossings the Avhole width of the street, R. S. iSSi, 
§ 3915; 116 Ind. 446. In a populous city it m.ay also be compelled to build a 
viaduct over its track at a street having a large daily travel upon it, without any 



199] IMPROVEMENT OF STREETS. [§3l6l 

statute to that effect, 39 Minn. 219. Where a city authorized a tfack to be laid 
in a plank-covered street for the use of a street railway, the iron rails projecting 
four inches above the planked surface, and permitted it to remain in that con- 
dition to the injury of persons using the street, it Avas held liable for its own 
negligence in failing to exercise the ordinary care and skill required of a muni- 
cipal corporation in making and keeping its streets in a reasonably safe condi- 
tion for travel by persons employing ordinary care. Usually such an obstruc- 
tion is a question of fact for the jury, 122 Ind. 39. A city is liable, in the ab- 
sence of contributory negligence, for injuries resulting from the /rig /it of Jiorses 
of ordinary gentleness, at objects naturally calculated to frighten them, and 
which the city has negligently placed, or permitted to be placed, and to remain 
vipon the streets, icy Ind. 475; 114 Ind. 525; but it is not liable for the acts of 
persons it licenses to use its streets, unless the thing licensed is extrinsically 
dangerous, 112 Ind, 576. 

29. In an action against a city a resident tax-payer is not competent to serve 
as 3. juror, 119 Ind, 368; 90 Ind. 545; 51 Ind. 119. 

30. Where one, while passing along the street of a town in charge of a 
frisojicr, was seized by the latter, in an attempt to escape, and thrown into a 
pit negligently permitted by the town authorities to remain in the street, 
■whereby he suffered injury, the town was held not liable, its negligence not 
being the /;'OA"/7«(7/£? cause of the injury. The town was not bound to provide 
against extraordinary conditions or circtcmstaiices^ 115 Ind. 51. 

31. A city is not liable for permitting a dangerotis ivall to stand on one 
side of an alley which falls and injures another wall on the opposite side; but 
where two persons own buildings on the opposite side of a public alley, and the 
owner of one, after it has been burned, negligently permits the ruined walls to 
become dangerous, he is liable to the adjacent owner for injury to his property 
caused bv the walls falling upon it, although the city marshal volunteered to 
take charge of the ruins and have the walls torn down, if necessary, 117 Ind. 
126. 

SURFACE WATER. 

32. A city is not liable for surface ivater running off its streets upon the 
adjoining lots, unless it accumulates it in a body, then, in that condition, or in 

' a stream, throws it on such lots ; and if it, by grading, accumulates it in a body, 
it must provide for its escape, 96 Ind. 236; 38 Ind. 348, 75 Ind. 241; 72 Ind, 
134; 84 Ind. 325; 89 Ind. 77. But if the accumulation of water was only an 
incident of the grading, and a plan of grading was not adopted negligently, the 
city Avill not be liable, unless the grading was negligently performed, 119 Ind. 
I. A city is not liable for overfiotv caused by unprecedented j^£?o<-/>9 or freshets, 
but it must make provision for ordinary freshets and storms; 3 Ind. 236; and 
in doing so it must take into consideration the past history of the water in that 
vicinity and make reasonable provisions for freshets of a similar character there 
which had previously occurred, and which were not of an extraordinary char- 
acter, 84 Ind. p. 328 ; 3 Ind. 236. The city is, however, liable lor an injviry 
caused by a defect in a street, even though such defect is caused by floods of 
unusual precedence, after it has had notice, or should have taken notice, and 
had .time to repair or guard the defect, 83 Ind. 76; 86 Ind. 462. See § 3106, 
notes. But where a city granted a railroad company the right to lay its track 
in the street, and such company put a culvert in the street and under its track 
for its own convenience, which -was not sufficient to carry off the water, it was 
held that the city was not liable, 26 Ind. 17. 

33. If a citj' construct an open ditch upon a street, so near to the plaintitFs 
lot as to cause portions thereof to fall into the ditch, and so as to deprive him 
of access to his residence, and to affect the healthfulness of his property by 
causing filthy xuater and sevjerage to become stagnant adjacent thereto, it is 
liable in damages, 119 Ind. 148. 

34. If a city adopt tx. frofer flan of drainage and lets the contract for the 
doing of the work, the contractor to use his own methods and means for the con- 
struction of the work, the city is not liable I'or damages resulting trom the 
contractor's negligence; but if the city adopt a defective plan, and the work is 



§3i6i<^] CITIES. [200 

constructed according thereto, and a special injury results to a property owner 
by reason of negligence in devising the plan, the city is liable, 119 Ind. 148. 



GENERALLY. 

3:5. A cause of action accruing to a person in his lifetime against a city 
for damages resulting from the construction of a ditch, survives and his ad- 
ministrator is the proper plaintiff, 119 Ind. 148. 

36. In such case the damages c^ccrz^e to the pei'son who owns the property at 
the time of the injury, and his right to maintain an action therefor is not affected 
by the fact that \\q farts xvith the title to the real estate after the commence- 
ment of the action, 119 Ind. 148. 

37. It is no answer that the city has reached its constittitional limit of t?i- 
dehtedness^ 27 N. E. Rep. See § 220, note 4. 

38. As a rule a city is not liable in damages to any one falling dovv-n on a 
stairway opening into the street at its margin or even within the margin, even 
though the person injured is blind, 26 N. E. Rep. 882. 

39. The repair of a street, even narrowing it, can not be enjoined, unless 
the person complaining would suffer irreparable injury, 26 N. E. Rep. 676. 



ADDITIONAL NOTE. 

To show negligence in the case of a sidev,-alk it must appear, [i] That the 
city had notice, actual or constructive, of the dangerous condition of the walk 
in time to remedy it, and [2] that, having such notice, it was the city's duty 
to remedy it, 44 O. S. 505. Allegations in a petition that on a sidewalk of a 
public street, in front of private property, the city suffered ice and snow to ac- 
cumululate and for a number of days to become smooth and slippery, and dan- 
gerous, and the city might have informed itself of this condition of the walk 
in time to have it made safe before the accident do not set forth a cause of 
action, Ihid. A property owner is not liable for injur}' from slippery sidewalk, 
by reason of the fact that a city ordinance requires him to clear the snow and 
ice from his pavement, i Disney, 532 ; 14 Gray, 249. A person who is guilty 
of contributory negligence by attempting to pass over a sidewalk which he 
knows to be dangerous by reason of ice upon it can not recover, even if the 
corporation would otherwise have been liable, 33 O. S. 246. If the corpora- 
tion is held liable for damages by reason of the unsafe condition of sidewalks, 
it has its remedy over against the party by whose act they were rendered un- 
safe, 4 Wall. 657 ; 54 Me. 46; 9 Allen, "^17; 47 N. Y. 475. And, if such person 
had notice of the pendency of the action, the judgment is conclusive as to the 
existence of the defect, the liability of the corporation and the amount of dam- 
ages, 10 Grav,496; 49 N.Y. 657. And the corporation may, in addition, recover 
reasonable expenses, including counsel fees, 122 Mass. 100. 



[18S5, P- 75- Approved March 9, 1SS5, and in force July iS, 1SS5.] 

Sec. 3161^. County commissioners— Bridges within cities. 4. All 
bridges, the estimated costs of which shall exceed five hundred 
dollars, to be built within the corporate limits of any city or town 
within this State, shall be built by the board of county commis- 
sioners in the same manner and paid for out of the same funds that 
other bridges without such corporate limits of such town or city 
are by law built and paid for. [El. Suppl. § 1521.] 

See § 3161, note 25. 



20l] IMPROVEMENT OF STREETS. [§§3l6l^, 3l62 

[1S91, p. 36S. Approved March 9, 1891, and in force June 3, 1891.] 

Sec. 3161^. Street grade for railroads. The common councils 
of incorporated cities shall have the power to enforce ordinances 
to establish the grade for railroad tracks on a level with im.proved 
streets or on streets being improved, and provide a penalty for the 
violation of such ordinance on the refusal of any railroad company 
to comply with its provisions. 

See § 3-24^. See § 3161, note 27. 

[1S67 p. 33. Approved and in force March 14, 1867.] 

Sec. 3162. Petition for street improvements. 6Z. When the 
owners of tw^o-thirds of the whole line of lots or parts of lots (and 
measuring only the front line of such lots as belongs to persons 
resident in such city) bordering on any street or alley, consisting 
of one whole square between any two streets crossing the same ; 
or, if the common council deem it expedient, for any reasonable 
distance upon any street or alley less than one whole square or 
block, — shall petition the com^mon council to have the sidewalks 
graded and paved, or the whole width of the street graded and 
paved, or for either kind of improvement ; or for lighting such 
street according to the general plan of such improvement in said 
city, — the common council may cause the same to be done, by 
contract given to the best bidder, after advertising to receive 
proposals therefor. And the common council shall have power to 
compel the owner or ovv^ners of any lot or a part of a lot on any 
street or alley, or upon any part of any street or alley, to repair 
the sidewalks in front of their respective lots or parts of lots ; and 
in case the owner or owners of any lot or part of a lot on any 
street or alley or any part thereof, fail or refuse to repair the side- 
walks in front of their lots, the common council may cause such 
repairs to be made by the street commissioner, at the cost and ex- 
pense of the owner or owners of such lot or lots ; and the city 
shall have a lien on such lot or lots for the reimbursement to her 
of the cost of such improvement. And the common council are 
hereby invested with full powers to pass by-laws and ordinances 
providing how and in what manner the repairs shall be made, and 
in what manner the same shall be assessed and collected from such 
owner or owners, and the manner in which the lien of the city for 
the expense incurred by her may be enforced against the lot or 
lots of such owner or owners : Pi^ovided, That any incorporated 
city having a population less than ten thousand may, by a two- 
thirds vote of all the members of the common council, cause 
plank or gravel walks, of such dimensions as such council may 
determine, to be constructed, cither upon the natural grade of 
the sidewalks therein, or any modification thereof established by 
such council, and the costs and expenses of any such improve- 
ments, or repairs thereto, shall be a lien upon the real estate front- 



§ 3162] CITIES. [202 

ing thereon, and shall be assessed and collected in the same man- 
ner as now prescribed by law for collecting assessments for im- 
proving streets, alleys, and sidewalks: Provided, fiirtJicr, That 
when the State of Indiana is the owner of property on or along the 
street or streets proposed to be improved as hereinbefore provided, 
the common council shall not contract for the execution of said 
improvements involving the State in any liability, without first ob- 
taining the written consent and approval of the auditor and treas- 
urer of state, but such city may make such improvements at her 
own expense. 

1. An agreement io fay for signing a petition for a street improvement is 
void, 42 Ind. i. 

2. The order for improvement must be entered of record. The Avork must 
be contracted in writing, after advertising. And if material be talcen from a 
street not ordered to be improved, for the improvement of another, the city is 
liable in damages for any injury to property upon the street from Avhich such 
material is taken, 36 Ind. 90. 

3. The improvement of a street upon petition need not be limited to one 
square., 34 Ind. 140. 

4. Although a street be outside the city limits, if the council act with good 
faith, imder a misapprehension, the members are not liable to the contractor 
personally, 42 Ind. 106. 

5. It is not necessary that the mayor should sign aii ordinance for a street 
improvement, 52 Irid. 411. 

6. Courts take judicial notice that a city has the power to improve streets, 
19 Ind. 135. This section is constitutional; upon the ground that the lands as- 
sessed are enhanced in value to an amount equal to the cost of the improvement, 
apportioned among those specially benefited, 114 Ind. 200, 429; no Ind. 279; 29 
Ind. 329, 220; 43 Ind. 347. It is valid, also, so far as notice to the land-owner 
maybe essential to enforce a lien, 114 Ind. 429. The city has full power to or- 
der repairs^ 23 Ind. 381; 36 Ind. 90 ; but the power to make assessments is 
strictly construed., 118 Ind. 289; jet any matter not affecting the jurisdiction of 
the council is not, 125 Ind. 455. 

7. In this State a city is liable to abutting lot owners ior consequential da7n- 
agcs resulting from a change in the established grade of a street or alley, 113 
Ind. 425; 100 Ind. 242 ; 50 Ind, 151; 120 Ind. 254; but is not responsible for <:o;z - 
sequential ni juries, resulting from the grading, where the work is done in a 
careful and skillful manner, 103 Ind. 314; 108 Ind. 7. See § 3073, notes. These 
damages must be sought by the statutory remedy, 36 Ind. 522. 

8. The city may order improvements to be made by a /t;,'c>-z'//z'r<f5 vote, with- 
out a petition, 17 Ind. .175 ; 20 Ind. 315; 90 Ind. 567; §3164; and it must, so ap- 
pear on appeal from a precept, 48 Ind. 116; 40 Ind. 31a; 38 Ind. 198 ; and so 
Avhere the vote is on 2i petition that does not conform to the statute, yet if the 
improvement is ordered by a tivo-tliirds vote, the defect in the petition is totally 
immaterial, 15 Ind. 112; 125 Ind. 407; i Ohio C.C.90; 26 Ohio St. 49. 

9. A resolution for the improvem.ent of a street is sufficient; an ordinance 
is unnecessary, 15 Ind. 112; 36 Ind. 90; 22 Ind. 491. The order for street im- 
provement must specify the nature and plan of the Avork in such a manner as 
to afford a basis for letting the contract, 77 Ind. 92, It " must, in appropriate 
terms, either ordain, resolve, or declare that the street to which it refers shall 
be improved, specifying the nature, character, or plan of the proposed improve- 
ment in such a way as to give at least a general direction to the letting 
of the work and the execution of the contract contemplated by such 
order. Such an order is, in some respects, analagous to a judicial act, and 
ought clearly and explicitly to prescribe what it authorizes to be done as re- 
gards the contemplated improvement to which it is intended to apply," '62 Ind. 
549 ; 77 Ind. 92. It need not specify with particularity of detail what such im- 



203] IMPROVEMENT OF STREETS. [§3162 

provement shell be, 109 Ind. 206; a general direction as to the character without 
describing it m detail is insufficient, 109 Ind. 227. Consequentlj' an order which 
does not speciiV, in a Nicholson pavement, of what kind of wood the blocks 
shall be made, how they shall be laid, and to Avhat grade, but leaves these and 
like particulars to the city engineer, is insufficient, and will not warrant a pro- 
ceeding to sell the property improved bj a forced sale, 77 Ind. 92. It is a dele- 
gation of pov^-er which the council is not authorized to make, 77 Ind. 92. But 
an ordinance providing that a street shall be "improved by graveling in the 
street, brick sidewalks and paved gutters," according to specifications to be 
prepared by the citj civil engineer, and providing for the advertisement for 
bids and the assessment of abvitting property, is not void for uncertainty, but is 
sufficient to autliorize tlie letting of a contract for the work, 114 Ind. 200. It 
being the duty of the city engineer to prepare plans and specifications, it will 
be presumed that he prepared them before the contract was let, 109 Ind. 206 
(questioning 77 Ind. 92). His plans are competent evidence in a suit to collect 
a street assessment, 109 Ind. 227. 

10. It is entirely oj>tio7ial ^xith. the city whether it will improve a street ; 
and the courts will not compel it to do so, 34 Ind. 471 ; 17 Ind. 267; 100 Ind. 242; 
120 Ind. 520; 125 Ind. 455. 

11. A street may be re-imf roved at the expense of the abutting property 
holders; and the council is the exclusive judges when such re-improvement is 
necessary, 100 Ind. 242; 17 Ind. 267; 34 Ind. 140, 471; 48 Ind. 116; 36 Ind. 90; 
50 Ind. 151. 

12. Any fatcntcd process can be used in the improvement of a street, 13 
Atl. Rep. 3S3 ; 17 Mich. 246; 46 N. Y. 160; 50 N. Y.513; 15 Kan. 126; 35 
Cal. 695, 699; 23 Wis. 590; 21 La. Ann. 143. See note 29. 

13. Until after advertisement for proposals a city can not make a valid con- 
tract, 38 Ind. 233 ; 19 Ind. 137; without it the contract is void, 19 Ind. 135. If an 
ordinance directs the particular manner in which such advertisement forbids shall 
be made, the contract lor the improvement can not be sustained if the direction is 
not followed, 45 Ind. 438. Thus advertising in one newspaper is not sufficient, if 
the ordinance requires two, 109 Ind. 227. Where the advertisement was by mis- 
take for opening bids on Sunday^ and they were opened the Saturday immediatelj"- 
before such Sunday, the contract was upheld, 65 Ind. 27 ; 70 Ind. 21. The notice 
should be for a reasonable time, but the statute requires no particular time, 48 
Ind. 116; 46 Ind. 550. Five (48 Ind. 116), four (38 Ind. 198), and eight days, 
accompanied by posted notices for that length of time has been held insufficient, 
46 Ind. 550. Upon an appeal from a precept under the old statute previous to 
1S85, if the transcript did not contain an averment that an advertisement or 
some notice for bids was made, it was liable to a demurrer for want of facts, 109 
Ind. 227; 114 Ind. 200; 41 Ind. 153; 38 Ind. 207; 36 Ind. 90; 38 Ind. 233. But 
where it appears that some kind of a notice was given, its sufficiency can not be 
inquired into after the work has been done, under color of the proceedings, with 
the acquiescence of the parties benefited. The court was inclined to think that 
no inquiry as to the sufficiency of the notice could be inade under any circum- 
stances where the appeal was from the precept, 114 Ind. 397, 200; 121 Ind. 534 
(overruling 38 Ind. 198, 233, and 45 Ind. 438). 

14. On appeal from a precept, the transcript must show that a qtcoricm was 
present when the work was ordered, 41 Ind. 406; and if the work was ordered 
without a petition, the transcript must show that the work was ordered by a 
izvo-t/urds vote of all the members of the council, 38 Ind. 198; 40 Ind. 310. 

15. No objection can be taken to an order for the improvement of a street 
at the expense of the adjoining property owners, on account of no reference to 
the liability of the city for so much as is occupied by public grounds and street 
and alley crossings, when the record does riot show that there were such public 
grounds and crossings, 38 Ind. 198. 

16. Where the trade of a railroad company borders upon the street, it may 
be assessed for improvements, 68 Ind. 562; 41 111. 306; 10 O. S. 159; 12 la. 112, 
but a railroad track laid in the center of a street by the permission of the coun- 
cil, is not liable for street improvements, vinless the permit is conditioned that an 
acceptance shall render it liable for them. See 42 Conn. 279, S. C. 19 Am. R. 534; 



§3162] CITIES. [204 

3S Conn. 422, S. C. 10 Am. R. 399; 21 Minn. 526; 88 Pa, St. 424: 33 Pa. St. 41; 
24 Pa. St. 465; Si Pa. St. 366; 34 X.J. L. 99; 60 111. 267, 90 111. 573 : 78 Ky.357. 
A street rail'^vay compa}iy not required to repair a street is not boimd to im- 
prove it, 26 N. E, Rep. 189. See Jiote iS. 

17. So it has been held that a cemetery may be assessed and sold, 46 X. Y. 
506; 7 Tsld. 517; 10 Bush. 549; S. C. 19 Am. R. 78; 42 Oh. St. 128; or ground 
used for charitable or educational purposes, 10 Oh. St. 110 ; 4 L. Ann. i ; or agri- 
cultural land, 109 Ind. 206; 34 Ind. 497. A court-house or public square is 
exempt from assessment and sale, 94 Ind. 553 ; 12 Ind. 620; 116 Mass. 193; 71 
N. Y. 498; but property used for religious purposes is neither exempt from 
assessment nor sale, 107 Ind. i; 38 Ind. 3; 36 Ind. 33S. (See 11 John. 80; 13 Pa. 
St. 104; 6 R. I. 235; 2 Mich. 587; 8 Bush. 50S.) 

18. The fact that a street railroad company is under a contract to re/pair or 
improve the street does not prohibit the city's ordering the work done at the 
expense of the adjoining property, 65 X. Y. 349; 47 X. Y. 475. See note 16. 

19. Power to improve a street includes power to improve the sidezvalk, 109 
Ind. 206. 

20. The city must not deviate in any substantial manner from its charter 
or the proceedings will be void; and it has no power to make the improvement, 
except as conferred in that instrument, no Ind. 259. Statutes conferring power 
upon a city to make assessments for street improvements are strictly construed, 
118 Ind. 2S9; 81 Ind. p. 498. But an injunction to prevent the improvement of 
a street is a collateral attack upon the proceedings of the city, and only defects 
or irregularities affecting the jurisdiction can be made available. Questions as 
to the manner in Avhich the work was done under the contract, and kindred 
questions, can not be considered in such suit, for they do not go to the jurisdic- 
tion, 125 Ind. 407. 

21. The council may reserve the right to reject all bids for contracts, and 
after it has done so, it may at a subsequent meeting, without a re-advertise- 
ment for bids, reconsider the vote of rejection and award the contract to one of 
the original bidders, 114 Ind. 200. So the city, with the consent of the con- 
tractor, may modify the contract in respect to the material and quality, if such 
modification does not have the effect to increase the cost. In such an instance 
the city must act in good faith, 30 Ind. 192 ; 22 Ind. 491, 502; 121 Ind. 534. The 
city may agree with the contractor that he will take city orders at par for so 
much of the work as the city is liable for, 22 Ind. 491. The city may extend 
the time for the completion of the work, 34 Ind. 140; 62 Ind. 57; 118 Ind. 275 ; 
27 N. E. Rep. 486. Only the council can let the contract, which must be in 
writing, 17 Ind. 175; 22 Ind. 492; but a bid in writing, containing all the par- 
ticulars of a contract, when accepted by the council is sufficient, 17 Ind. 318. 
See I Ind. 2S1. Slight deviations m the contract from the ordinance does not 
vitiate the proceedings, 52 Ind. 411. 

22. The dirt removed from the street improved belongs to the adjacent lot 
owners. It can not be taken and used by the city, except to improve other 
streets, alleys or public, places, the grading of which is of the same general 
plan, 78 Ind. i; 36 Ind. 90; but a provision in the contract that the surplus 
earth shall belong to the contractor can not be questioned in a proceeding to 
enforce an assessment, 118 Ind. 275. 

23. Under no circumstances is the city liable v\-hen the contractor was to 
receive his pay by local assessment; even though the property improved and 
assessed bring less, on sale, than the contract price, 13 Ind. 245; nor are the 
members of the council, if they acted in good faith, 42 Ind. 106. 

24. The city may provide that the contract for street improvement shall 
not be assig7ied without consent of council; and if it is, on a precept to collect, 
such consent must be averred, 40 Ind. 3S2; but where the transcript on appeal 
aflimatively shows an assignment acted upon and recognized bv the council, it 
Avill be sufficient, although there v.-as ino formal order entered approving the 
assignm.ent, 121 Ind. 534. 



205] IMPROVEMENT OF STREETS. [§3l62 

^ ADDITIONAL NOTE. 

25. T//e £;-ranf of />o-vcr to municipixl corporations to make special assess- 
ments is to be distinguished from the power to tax, and is constitutional, ^5 O. 
S. 243; 5O.S.520; 8 O. S.333. 

26. Dcclaratioji of intent to charge 0'V7iers^\iQ.\orQ improvement is made, is 
necessary to a valid assecsment, 2 Handy, 261. 

27. Property to he assessed must he designated before improvement is 
made, otherwise assessrnent will be void, 34 O. S. 468 , 42 O. S. 522 ; but this 
^vas formerly not necessary in assessments for lands appropriated, 31 O. S.387. 
An ordinance which does not properly designate the propertj^ to be charged 
will not authorize a charge of any kind, and the proceedings do not fall within 
the curative provisions of § 2289, 34 O. S. 481. "Lots and lands" includes all 
real property, 18 O. 514; includes property of railroad used exclusively for its 
track, TO O. S. 159; 19 O. S, 589; 68 Ind. 562; also wharf property, i C. S, C. R. 
57 ; also cemetery lots, 42 O. S. 128; also property belonging to board of edu- 
cation for school purposes, 2 Bull. 184; also property of institutions of purely 
public charity, 2 Bull. 158, 265; 6 Rec. 26. Designation of a street, a part of 
which lies outside of the corporation, has reference only to the part within the 
corporation, and the assessment may be upon that side, i C. S. C. R. 183. 
When an assessment is made on abutting property, a lot which abuts must be 
included in the designation, although it is not within the corporation at the 
time the improvement is ordered, 24 O. S. 232, Property abutting a street ded- 
icated on condition that the lots should not be charged for an improvement 
Avithout the consent of a majority of the abutting owners, is assessable; dedica- 
tion takes effect, but condition does not, 31 O. S. 506. Two streets so con- 
nected as to form a continuous line of travel, though called by different names, 
may be improved as one street, 2 Bull. 337; and an intermediate part between 
two designated points may be omitted, and the separate portions improved as if 
contiguous, 26 O. S. 284. 

28. Petitioners may ivithdrarv at anv time before final action is taken on 
the petition by ordering improvement, 27 O. S. 21S; but not after final order is 
made, 3 O. C. 338; 34 O. S. 44; 44 O. S. 484. Finding that the requisite num- 
ber have signed is not conclusive of the fact, 22 O. S. 584; 32 O. S. 544; 35 O. 
S. 444. Petitions need not be on the same piece of paper, 36 O. S. 288; 32 O. 
S. 544; but signatures to petition for improvement Avhich has been abandoned, 
can not be considered, 35 O. S. 444. Slight differences in wording of petitions 
for substantially same object will not relieve the property owner of burdens 
imposed by granting the petition, 40 O. S. 381 ; but if petition is changed al'ter 
signing without privity of signers, it will be void as to them, 2 Hill. 466. 
Widow having dower interest unassigned cannot sign, 22 O. S. 584; guardian 
of minor may sign for ward, 32 O. S. 544; whether tenants in common consti- 
tute '"one owner," qtccere, Ibid.; bvit if they hold otherwise than as heirs, each 
should be counted as an owner, 35 O. S. 444; guardian of an imbecile may sign, 
5 Bull. 903; 9 Rec. 479; also lessee of perpetual lease, 5 Bull. 903; one person 
may sign for another, providing action is ratified before final order made, 44 O. 
S. 479. Petitioner who dies before final action on petition should be counted, 

35 O. S. 444; also one Avho conveys his property after signing, 5 Bull. 903. It 
is not a valid objection to an improvement that one or more signed the peti- 
tion therefor on promise of others that they would pay the assessment, 35 O.S. 
444. For construction of the term "owner" see {tenant in dozi'er) 2 Swan 
(Tenn.) 364; {lessee for long term of years') 11 Md. 186; {lessee for t-vo years) 

36 O. S. 24; {ojficers of corporations, exccictors, adjni^iistrators^ etc.) 59 Cal. 
206; 12 Bull. 119; 44 N. Y. 315. 

29. Contract made without advertising for bids is void, 24 O. S. 232, 24S ; 
9 Neb. 358; 53 Cal. 389 ; 48 Mo. 17 ; 85 Pa. St. 379; 24 O. S. 232, 248. Proceed- 
ings are irregular and void where a substantial part of the work has been omit- 
ted from the advertisement, 2 C. vS. C. R. 44; or where a different work is con- 
tracted for from that advertised for, 11 Minn. 174; or where advertisement is 
for three wrecks, and should have been for four, 24 O. S. 232; or where adver- 
tisement refers to plans and specifications on file, which have not been pre- 
pared, Ibid, 248; or where statute requires " two weeks" notice, and ton days 



§ 3162] CITIES. [206 

only are given, 2 C. S, C. R. 44; or posting for five days and notice ir, posted 
three days instead, 40 Cal. 255. Where bids are required to be accompanied 
by a specimen of material, tlie specimen becomes part of the bid, 16 Bull. 211. 
A bid, having been received, can not be altered or amended on account of mis- 
take unless the data for its correction appear on the face of the bid, 19 O. S.97; 
4 O. C. C. 86. Provision as to bids does not apply to the improvement of a 
park, conveyed to city in trust, to be cared for and improved by a commit- 
tee of council, 36 O. S. 169; also held, in New York, not to apply where the 
thing to be furnished consists of a single article, like gas, and one person has a 
monopoly of the manufacture, 33 N. Y. 309. Publication in a newspaper 
means a paper in the English language, 26 O. S. 49; but an advertisement in 
English, in a paper published in German, has been considered sufficient, 45 
Cal. 30. 

30. Council has no power, by rule, to require the bid, in addition to the 
guaranty provided by the ordinance, to be accompanied by a declaration of two 
freeholders, that they are qualified to and will become sureties for the faithful 
performance of the work, if contract is awarded to the bidder, 11; Bull. 196. 
And if council rejects a bid under such rule it will be enjoined from awarding 
the contract to the next lowest bidder, at the suit of a tax-payer, Ibid. 

31. An award to other than the lowest bidder, through honest mistake, 
will invalidate an assessment, but the fair value of the work may be collected, 
I Bull. 104; but where one is, by collusion, falsely made to appear the loAvest 
bidder, nothing can be collected, 17 Bull. 116. Board has the discretion to re- 
lease the lowest 'bidder at his request, without invalidating the assessment, 5 
Rec. 153. If the board, after receiving bids, awards the contract to any one, 
they are bound to award it to the one ottering to do the work at the lowest 
price, although a lower bidder has failed to comply with the statute, and may 
be compelled by mandamus, 21 O. S. 311; 4 O. C. C. 86; or, if they attempt to 
award the contract to any other than the lowest biddex, they may be enjoined 
at the suit of a tax-payer, 15 Bull 196. But where the lowest bidder fails to 
comply with requirements, or for other reason is not accepted, they may reject 
all bids and re-advertise, in- which event they cannot be compelled to award the 
contract to any bidder, 36 O. S. 326; i O. C. C. 194; 3 Bull. 542; 3 O. C. C. 
542; 93 N. Y. 557. The board has no right to determine who is the lowest 
bidder by other qualifications than those called for in the advertisement for 
proposals, 49 N.J. L. 339. As to lowest bidder in the aggregate, see 20 O. S. 

425- 

32. Patented favements. Upon the question v^^hether there can be compe- 
tition for the construction of a pavement covered by a patent, the courts are 
about evenly divided. The following cases hold that there can not: 23 Wis. 
590; 21 La. Ann. 143; 35 Cal. 706, 695. The following that there can: 17 
Mich. 246; 46 N. Y. 109; 50 Id. 573. If competitive bidding is not required by 
statute, there is no objection to receiving bids for a patented process ( Wycoff 
favement)^ 15 Kas. 130. And if the corporation, before letting the contract, ac- 
quires the right to permit any successful bidder to use, on reasonable terms, 
the patented pavement, the assessment can not be attacked on the ground ot 
want of competition {Parisian ■pate7it asphalt)^ 43 O. S. 585. But even where 
it is held that the patent will not destroy competition, a work composed of 
parts, some of which are patented and others not, should be let Avith separate 
bids for the patented article, 46 N. Y. 100. But it is held in New York that 
the provisions for letting to lowest bidder do not apply where the thing to be 
furnished consists of a single article, as gas, and one person has a monopoly of 
the manufacture, 33 N. Y. 309. See note 12. 

33. The section contemplates a contract in pursuance of bids, and a lowest 
bidder who refuses to enter into a contract in accordance with the notice and 
specifications can not claim damages, 41 O. vS. 39; but if the corporation inserts 
conditions in contract, not contained in the advertisement or records and files 
relating to the improvement, the contractor may recover, 26 O. .S. 411. A con- 
tract is void unless made with the lowest bidder, 22 O. S. 546. Collusion 
among bidders will avoid the contract, 71 N. Y. 527; also collusion between 
the contractor and city officers, 17 Bull. 116. Provision of a contract that any 
alterations, modifications or extra work shall be provided for by written agree- 



207] 



IMPROVEMENT OF STREETS. 



[§ 3162 



ment, may be ^vaiVed by the corporation, 33 O. S. 336 ; 3 Bull. 33 ; so also may 
the time of completion, 28 O. S. 116. If the contractor abandons the contract, 
the corporation may sue for damages for the breach, or waive the breach and 
enter into new contract, or modify the old one, 2 Bull. 33, Where specifica- 
tions for an improvement require materials of a certain standard, and adver- 
tisement provides that bids shall be accompanied by a sample, such sample, 
when a bid is accepted, becomes part of the contract, and corporation cannot 
afterwards object if material equal to the sample is furnished, although it may 
not be equal to the standard, 16 Bull. 211 ; see also Id. 290. 

34. Agreement among bidders which was held not to stifle competition, 24. 
O.S.565.. 

ADDITIOXAL NOTE ON SIDEWALKS. ' 

35. Resolution and notice must be reasonably specific as to place ; notice 
to repair 185 feet, w^here the owner has 385 feet, without stating what part, is 
too indefinite, 7 Bull. 30. Resolution requiring sidewalks constructed where 
" not already constructed," and reconstructed "where necessary," is not sut^i- 
ciently specific, 51 Cal. 562; 53 Cal. 44. The owner of a corner lot may be re- 
quired to pave the sidewalk on each street, 31 Graft. 571 ; but his property can 
not be assessed for that part of the sidewalk forming the intersection beyond 
his line, 7 Bull. 79. Sidewalks maybe ordered before the street is graded, 9 
Kas. 155; II Kas. 384. Who is owner of old material in sidewalk is a ques- 
tion of fact, 26 O. S. 447; so also, whether curbing is part of sidewalk, 3 O. C. 
C.493. 



Petition for Street Improvement. 



-, Ind., 



18- 



To the Common Council of the City of .• 

We, the undersigned, owners of real estate represented by the feet 

fronting and abutting upon • street, as designated below, from to 

, a distance of feet, hereby petition your honorable body for the 

— street, 



{describe the ki^id of improvement desired} of said part of said 

and for an assessment lor the whole cost of such improvement of said 

(except the proportion thereof occupied by street and alley crossings) against 
the abutting real estate. 



Name 
of Owner. 



No. cf 
Feet. 



No. of 
Lot. 



Name of Addition 
or Subdivision. 



Petition for Passage of an Ordinance. 



To the Common Council cf the City cf .• 

Gentlemen : The undersigned, owners of real estate fronting on 

street, between and streets, respectfully petition for the passage 

of an ordinance providing for . 



§3l62J CITIES, [208 

Remonstrance Against Passage of Ordinance. 



To the Common Cou?icil of the City of ; 

Gentlemen : The undersigned, owners of real estate fronting on 

street, between and streets, respectfully remonstrate against the 

passage of an ordinance providing for the . 



Special Ordinance for Streets and Sidewalks, 

No. , , iS— . 



AN ORDINANCE TO PROVIDE FOR GRADING AND GRAVELING STREET 

AND SIDEWALKS, FROM TO , AND FOR THE COSTS THEREOF. 

Sec. I. Be it ordained by the Common Cormcil of the City of , l7zd., 

That street and sidewalk — , from to — be graded according 

to stakes set by the city civil engineer, on the following grade, to wit: Begin- 
ning at station and the roadway graveled to a width of ( — ) feet, 

and to a depth of ( — ) inches in the center, sloping to inches at 

the sides, with the best quality of raked, river or creek gravel; and the 

sidewalks graded to a width of ( — ) feet, and ( — ) feet of the inner 

portion thereof graveled to a depth of ( — ) inches, with the best quality 

of sidewalk gravel. And the lawns to be properly dressed up with fine earth 
and left perfectly smooth. 

All work to be done to the entire satisfaction of the city civil engineer. 
And that the expense of such as aforesaid (except the propor- 
tion thereof occupied by the public grounds by said city bordering thereon, 
and the crossings of streets and alleys), be assessed against and collected from 

the owners of the lots and unplatted lands bordering on said between 

the limits aforesaid, according to the provisions of §§ 68, 70, and 71 of the act 
of the general assemby of the State of Indiana, approved March 14, 1867, en- 
titled "An act to repeal all general lav/s now in force tor the incorporation of 
cities, and to provide for the incorporation of cities, prescribing their powers 
and rights, and the manner in which they shall exercise the same, and to regu- 
late such other matters as properly pertain thereto," and § 69 of said act as 
amended by an act of the general assem.bly of the State of Indiana, approved 
April 14, 1881, and also of an act of the general assembly of the State of Indi- 
ana, approved April 13, 1885, entitled "An act concerning contracts m.ade by 
order of the common council of cities for the grading and improvement of 
streets and alleys, providing the manner of estimating the cost thereof and of 
enforcing the same against the lots and unplatted lands abutting on such streets 
or alleys, fixing the liability therefor, and declaring an emergency," 

Sec. 2. The citj^ civil engineer is hereby directed to set the proper grade 
stakes and also to advertise, by publication one day each week for three succes- 
sive weeks, in the , that sealed proposals, for the execution of said work, 

will be received by the on the day named in said advertisement. 



209] 



IMPROVEMENT OF STREETS. 



[§316: 



Sec. 3. This ordinance shall take effect and be in force from and after its 
passage. 

Passed by the common council this day of , 18 — . 



Attest 



Mayor. 



City Clerk. 





0* 

3 


H 

c 


M 
C 

• W 
























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c 



> 

n 

w 




7) 



z 



CO 


5 






Form of Advertisement for Bids. 



Office of the City Clerk, 



-, 18—. 



Sealed proposals will be received by the common council of the city 
of ,at this office, until 12 o'clock m., , 18 — , for furnishing the neces- 
sary labor and materials for the improvement of street, from to 

[oy any other matter for which bids are received^ according to the plans 

and specifications therefor on file in the office of the city civil engineer. 

Each bid must be accompanied by a sufficient guaranty of some disinter- 
ested person, that if the bid is accepted a contract will be entered into and the 
performance of it properly secured. 

Bidders are required to use the printed forms, which will be furnished on 
application. 

The common council reserves the right to reject any or all bids. 
Bv order of the Common Council, 



Form of Bids. 



Citv Clerk. 



To the Common Council of the City of .• 

The undersigned, having carefully examined the plans, specifications and 

profiles for the improvement of street, from to , proposes 

to furnish all the material and do all the work necessary for said improvement, 
in strict accordance therewith, and the rules and regulations of said city, and 
under the direction and to the satisfaction of the common council {or. civil en- 
gineer] of said city at the following rates, viz.: 



14 



§ 3i62] 



CITIES. 



[210 



1 Prices to be written in 
j words in this column. 


Prices in fig-ures 
in this column. 


Broken Stone, packed, . , . per cubic yd 
Catch Basins, complete, . . a> per plan, 
Concrete, per en. vd , 


DOLLARS. 


CTS. 


^ 


CTS. 


















Coping, per sq. ft.. 

Crossings, per Im. ft., 

Curbs, Pattern A, ' 



























B, 










C 










Drain Pipe laid in place, in- 
cluding furnishing and 
jointing, in , ". 

Excavation for Drain Pipe, . per cu. yd., 

Excavation for Masonry 

foundation, " 



















































Flagging, and Limestone 

Gutters, complete, . . . per lin. ft.. 
Flagging Gutters, ... . " 
Grading, per cu. yd.. 


































Lumber, ... . perlvl B M 











Manholes, complete, 

Masonry, Brick, per cu. yd., 

" Squared Stone, . . 












Rubble Coursed, . 










" " Uncoursed, . " 











Dry, RetainingWall 
" Dry, Drain, ... " 


















" Rock-faced, ... " 










Paving with Bowlders, . . . per sq. yd., 




...... 






" " Limestone, . . '• ' 











Rebowldering, including 

New BoAvlders, .... " 



















Resetting Old Curbs, ... per lin. ft.. 










Relaying Flagging, .... 










Rolling, each layer, . . . per sq. yd , 










Screened Gravel, loose, . . u " 










Etc., Etc., .... 












Cidder. 



Another Form of Bid. 



nid. 



To the Common Council of the City of- 



Ind: 



Gentlemen: The undersigned proposes to improve from • 

to by (including any and all ^vork and material that mav be neces- 
sary to connect the work done w'ith the adjoining work) in a proper"'and work- 
manlike manner, and according to the plans "and specifications and profile 
on file in the ofRce of the city civil engineer of said city, and according to the 

terms of special ordinance No. , , 18 — , and according to the laws and 

regulations of the city, and under the direction and to the entire satisfaction of 
said city civil engineer, at the following rates to wit: 



2Il] 



IMPROVEMENT OF STREETS. 



[§3162 





Price written in words here. Figures here. 


Bowldering, per lineal foot . . 




DOLS. 


CTS. 


Curbing with Stone, per lineal ft. 








Paving with Brick, per lineal ft. 








Graveling, per lineal foot . . . 








Double Walk-stone 

Single " 

Bowldered Wings, per square yd. 









































Contractor. 

























Graveling 

Double Walk-stone ., . . 
Single " .... 
Bowldering, per square yd 


Bowldering 

Curbing 

Pavinp- 


































^ 

































fs 





^ 






> 


^ 




P^ 


^ 




P3 










7i 




•=3 


w 




a 






5 


H 







^ 




H 


H 




?3 











Bond Accompanying Bid. 



We, the undersigned, are held and firmly bound unto the city of 

in the sum of one thousand dollars ($1,000.00), for the payment of which well 
and truly to be made we hereby jointly and severally bind ourselves. 

Signed at , this — day of , A. D, 18 — . The condition of 

this obligation is such that if the above proposal is accepted and the contract 

awarded to the above named bidder, , and the bidder shall within five 

days after such award is made enter into a contract, in the form prescribed, 
with at least two approved sureties, or in case the said bidder fail or refuse to 
perfect the said contract as aforesaid within the time limited as aforesaid, and 
then shall promptlj^ pay to said city all the expenses it has been to in advertis- 
ing for bids on said work, and shall also pay ail other damages that may accrue 



§3162] CITIES. 1_2I2 

to said city by reason of such failure or reason as aforesaid, then this obligation 
to be null and void ; otherwise to be of full force and virtue. 



A Resolution Accepting Bid. 

TO ACCEPT BID, AND CONTRACT WITH FOR THE IMPROVEMENT OF 



Resolved, That the bid of for the improvement of street, 

from to , be accepted, the same being the lowest bid, in the aggre- 
gate, for said work. And the major is hereby authorized to enter into a con- 
tract with said , with and as his sureties for doing said work, 

according to the plans and specifications therefor at the following rates: [I?i- 
sert items and j^r ices as contained in hid.\ 



Contract for Street Improvement. 

Advertisement No.- , , iS — . No. ■ 

Estimate approved day of , iS — . 

This agreement, made and entered into this day of , iS — , 

by andbetAveen , of the county of ,and State of Indiana, of the first 

part, and the city of , said county and State, of the second part: 

Witnesseth, That the said part — of the first part do — covenant and agree to 

. Said amounts to be collected by the said part — of the first part, at 

own expense, from the owners of the property bordering on said improvement, 

according to their respective number of feet, and from the city of , for the 

proportion of front feet on said occupied by the crossings of streets and 

alleys and public grounds owned by said city bordering thereon ; and said 
part — of the first part herein further agree — to pay any and all moneys due to 
any contractor, or to any person or persons furnishing any material whatever, 
and to any laborers employed by said part — of the first part, for any work done 
in the prosecution of si;ch improvement. It is hereby expressly vmderstood 
that no assignment of this contract shall be made to any other partj' without the 
consent of said city 

The part — of the first part further agree — to perform the work ac- 
cording to special ordinance No. , , 18 — , and plans, profile, and 

specifications on file in the ofiice of the city civil engineer of said city, and to 
his entire satisfaction 

The said part — of the first part covenant — and agree — that will exercise, 

in the prosecution of said work, all proper skill and care; that willproperly 

guard and protect all excavations or dangerous places, and will use all due and 
proper precaution to prevent injury to any property, person or persons whatever; 

and that will omit no reasonable precaution which will tend to the security of 

all persons and property. The contractor — further covenant — and agree — to 
supply all earth required to complete the necessary grading, and if a surplus, to 
remove the same to some street or alley, not exceeding a distance of half a 
mile, as shall be directed by the city civil engineer, and spread the same to his 
satisfaction. The contractor — further agree — to maintain the work and keep 
it in good repair, to the entire satisfaction of the city civil engineer, for a period 

of years from date of final allowance of estimate, without cost to the city 

or property holders along the line of said improvement. And if at any time 
during the said period said work, or any part thereof, shall, in the opinion 
of the said city civil engineer, require repairing, said contractor shall, upon 
notice from said engineer, immediately make such repairs , and in case of 
failure to make such repairs, as aforesaid, within ten days from service of such 



213] IMPROVEMENT OF STREETS, [§ 3 1 62 

notice, the city shall have the right to purchase such materials as it shall deem 
necessary, and to employ such persons as it may deem proper, and to undertake 
and complete said repairs, and collect the costs of such repairs from said con- 
tractor — and sureties jointly and severallj-. Said work shall be finished on or 

before the day of , i8 — , to the entire satisfaction of the city civil 

engineer; and should said Avork not be finished by the time specified, and ac- 
cording to the above specifications, then the said contract shall be void and of 
no eftect in law, and the said part — of the second part shall have the privilege 
and option of forfeiting this contract and of reletting the same; and the part — 
of the first part shall be liable for all damages that may accrue by said failure 
to perform said work according to this contract ; and unless the said work shall 
be done within the time specified, tlie said part — of the first part shall not re- 
cover for any work done under this contract. 

In testimony whereof, , the foregoing named part — , hereunto set — 

hand — this ■ • day of , i8 — . 

For the citv of : 



Contractor- 



Mavor. 



Bond. 



Know all Men by these Presents, That we, , of the county of 

, and State of Indiana, are held and firmly bound to the city of , 

Indiana, in the sum of ($ ) dollars, for the payment of which, well 

and truly to be made, we jointly and severally bind ourselves firmly by these 
presents. 

The conditions of the above obligations are such, that if the above bound 

shall faithfully comply Avith the foregoing contract, made and entered 

into this day of , i8 — , with the city of , Indiana, and fulfill 

all the conditions and stipulations therein contained, according to the true in- 
tent and meaning thereof in all respects, then this obligation to be void; other- 
wise to be and remain in full force and virtue in law; and in the event said city 
shall extend the time for the completion of said Avork, such extension shall not 
in any Avay operate to release the suret — on this bond. 

Witness our hands and seals the day and year last above Avritten. 

[Seal.] 

[Seal.] 

, [Seal.] 



State of Indiana, County, ss: 

The undersigned, suret — - on the above bond, does each for himself solemnly 
SAvear that he is the owner in fee simple, in his own name and right, of real 

estate, situate in county, Indiana, which real estate is clear and Avholly 

imincumbered, and of the value of at least the amount named in the above 
bond. 

[Signed] 



Subscribed and sworn to before me, a notary public in and for said county 
and State, this day of , i8 — . 



Xotarv Public. 



§3163] 



CITIES. 



[214 



State of Indiana^ 



County, ss: 



The undersigned, suret — on the above bond, does each for himself solemnly 
swear that he is the owner in fee simple, in his own name and right, of real 

estate, situate m county, Indiana, which real estate is clear and wholly 

unincumbered, and of the value of at least the amount named in the above 
bond. 

[Signed] 



Subscribed and sworn to before me, a notary public in and for said county 
and State, this day of , 18 — . 



Notary Public. 



> 
O 



^ 
^ 



^ 3 






c o 

I I. 



[1881 S., p. 391. Approved and in force April 14, 1881.] 

Sec. 3163. Cost, how apportioned. 69. In all contracts specified 
in the last preceding section, the cost thereof shall be estimated 
according to the whole length of the street or alley, or the part 
thereof to be improved, per running foot; and the city shall be 
liable to the contractor for so much thereof only as is occupied by 
public grounds of the city bordering thereon and the crossings of 
streets and alleys, and the owners of the lots bordering on such 
street or alley or the part thereof to be improved shall be liable to 
the contractor for their proportion of the cost, in the ratio of the 
front lines of the lots owned by them to the whole improved line ; 
and in making the assessments against such owners for the im- 
provement, the ground shall be assessed across the ground front- 
ing or immediately abutting on such improvement, back to the 
distance of fifty feet from such front line, whether such ground be 
subdivided by platting or conveyance or in other manner. All 
assessments v/here the ground to be assessed is held by more than 
one owner shall be in the proportion of the fair cash value of each 



215] IMPROVEMENT OF STREETS. [§ 3 1 64 

parcel, less the value of the improvements, to be determined by 
the city engineer ; and in case of sale upon a precept, each parcel 
shall be offered and sold separately, beginning with the front par- 
cel, and so on to the last or rear parcel : Provided, That when the 
owner of any lot shall have made any improvement in front of his 
lot in accordance v.'ith the general plan for the improvement of 
such street, and under the direction of the city engineer, he shall 
be entitled to a reasonable allowance therefor upon his proportion 
of the cost of such improvement ; which reasonable allowance shall 
be determined by the said engineer: Provided, That all contracts 
made by any city, or by any officer under the authority thereof, 
for public improvements or otherwise, in the profits whereof any 
officer of such city shall be interested, directly or indirectly, shall 
be void. 

1. This entire section is repealed bj' § 3165^, unless it is with the exception 
of the two provisos. The inference to be drawn from the supreme court's de- 
cision is that these provisos are still in force, 114 Ind. 246; 108 Ind. 189. Esti- 
mates are now made in accordance with the provisions of that section, which 
are substantially like the provisions of this section. 

2. This section as amended in 1881 is not unconstitutional by reason of the 
mis-recital of the title of the amended act, 90 Ind. 567; norisitimconstitutional 
because it assesses property back to a distance of fifty feet, whether it borders 
on the street or not; nor because it cuts off an appeal from the assessment of 
the city civil engineer, section 3165 remedying that defect, 90 Ind. 567. 

[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 3164. Payment — Lien — Order witliont petition. 70. When 
any such contract shall have been made, or shall have been here- 
tofore made and shall have been in progress of fulfillment, the 
common council shall have power to cause estimates to be made, 
from time to time, of the amount of work done by the contractor, 
and to require such amount to be paid to him, deducting reason- 
able percentage to secure the completion of the contract, until the 
whole shall be finished, and to prescribe the time within which the 
whole shall be completed; and such estimates shall be liens upon 
the grounds upon which they are assessed, to the same extent that 
taxes are a lien, and shall have the same preference over other de- 
mands. The common council, with the concurrence of two-thirds 
of the members thereof, may order or cause any or all of the im.- 
provements mentioned in the preceding section, and repairs of 
any kind on streets and alleys, to be made in like manner, without 
such petition ; and either charge and cause a«ny or all of the ex- 
penses thereof to be assessed and collected, as hereinafter pro- 
vided, when petition is made, or, if it is deemed just and right by 
the common council, to cause such expenses, or any part thereof, 
to be paid out of the general revenue of the city. 

1. What property may be assessed, see § 3162, notes 17 to 19, and ^ 3165a. 

2. Even though a petition for improvements does not conform to the stat- 
ute in having the requisite number of signers, yet if the improvement is 
ordered by a two-thirds vote, the defect in the petition is immaterial. 15 Ind. 



§ 3164] CITIES. [216 

112; 125 Ind. 407. Wliere the improvement is ordered bj a two-thirds vote, 
the transcript on appeal from a precept must show the vote, or at least that 
there was a two-thirds vote in favor of it, 48 Ind. 116; 40 Ind. 310; 38 Ind. 198. 
It is not necessary that the council enter of record their determination whether 
the improvement should be paid by proprietors, or out of the general fund ; but 
if the latter course is determined vipon, an entry of record to that effect should 
be made, 17 Ind. 175. If the council adjudge the fetitio7i sufficient^ such ad- 
judication is conclusive against collateral attack, 125 Ind. 407; 22 Bull. 153. 

3. The council may correct a final assessment., 41 Ind. 221. (But see 33 Ind. 
157, where it Avas held that a city could not revise or correct an assessment) ; 40 
Ind. 235. 

4. Payments made by the owner in advance of the estimate are valid, 12 
Ind. 417. 

5. Usually payments are made upon estimates of work done; and the last 
one is called the final estimate. When an estimate is made, the council directs 
its payment, and this direction is called an assessment. It is the duty of the city 
civil engineer to make the estimate and report it to the council. The council 
may hear evidence in opposition to his estimate, but such is not the practice. 
On appeal from a precept the transcript must show a report by the engineer to 
the council of an estimate, and that the council directed its payment and allowed 
it, 17 Ind. 175. Thejinal order directing an estimate is not affected hy a previous 
order refusing to do so, 109 Ind. 227; and it is presumed that the engineer in 
making and the council in approving it did their duty, 118 Ind. 275. 

6. The shove section \s not u7iconstitutional hec3.nse \t provides no appeal 
from an estimate; that proceeding being avithorized by § 3165, 90 Ind. 567; 114 
Ind. 200, 429. The delegation of power to make the assessment, to the city civil 
engineer is a valid delegation, and the statute in that respect is valid, 90 Ind. 567. 

7. A contractor can compel the city by mandate to make an estimate ac- 
cording to his contract; and neither the engineer nor any other city officer is a 
necessary party, 96 Ind. 206. The city can not defend on the ground that the 
proceedings were invalid, 113 Ind. 597. 

8. The assessment must show the amount due on eac/i lot or piece of land, 
40 Ind. 235; and Avhere an improvement severs land into two pieces, each must 
be assessed severally, 43 Oh. St. 69; 35 Oh. St. 369. In the case otj'oint ozuners, 
even as tenants in common, it should be assessed in the names of both, 33 Ind. 
30; and if a lot is thus assessed when in fact the ownership Avas several, that 
fact may be set up on appeal from the precept by answer, and it is a good de- 
fense to the enforcement of the precept, 33 Ind. 30. In such a case it makes no 
difference that the person thus objecting did own the whole lot at the date the 
improvement Vv-as ordered, and sold it before the assessment was made. It is 
the date of making the latter that determines the rights of the parties, 33 Ind. 
30. But the assessment of tw^o lots jointly, ov.-ned by one person, will be valid 
after a joint sale; and the error at any time before sale may be corrected, 52 
Ind. 411. 

9. It is no defense that other j^roperty is not properly assessed, 40 Ind. 337; 
nor can the validity of other assessments be inquired into, 121 Ind. 534. 

10. The property assessed must be so described that a person acquainted 
with surveying can find and identify it; but in doing so the ordinance or reso- 
lution ordering the work, the contract and the estimate of the engineer may be 
all used for that purpose, 68 Ind. p. 568; 48 Ind. 116. 

11. The lie7i attaches only when the estimate is made, and not before; and 
a warranty deed executed before the estimate is made does not cover the lien 
that afterwards attaches by reason of such assessment. It does not relate back 
to the time the improvement was ordered, 38 Ind. 289; 39 Ind. 119. The lien 
probably does not attach until the estimates are approved by the council ; 68 
Ind. 562. See § 3165, note 46. 

12. The phrase " any or all improvements mentioned in the preceding sec- 
tio7i" legitimately embraces the improvements named in § 3162, 15 Ind. 112; 
22 Ind, 491. 



2iy~\ IMPROVEMENT OF STREETS. [§ 3 1 64 

13. If n party sfaiid by and see an improvement progress under these sec- 
tions, after it has progressed to the improvement of his property he is estopped 
to question the power of the city to make the contract, 30 Ind. 192; 34 id. 140; 
114 Ind. 200; 109 Ind. 227, 206, 347; 108 Ind, 121; 118 Ind. 275; 122 Ind. 167 , 107 
Ind. iSi. But, see id. 36. But hy consenting that the city may build a stone- 
Avall on his land so that the street can be graded and improved, such land- 
owner does not agree to pay for such wall, 56 Ind. 127. Persons signing a peti- 
tion will be estopped to deny the power to grant the petition, but will not be 
estopped from objecting that the subsequent proceedings of the corporation are 
in violation of law, 39 O.S-281 , 22 Mich- 104; 56 N. Y. 257. See note 21 and 
§ 3165, 7iote 8. 

14. Coverture is no bar to the assessment of real estate of a married woman, 
41 Ind. 221. Nor is the omission to assess other property, 40 Ind. 337. 

15. Money vohcntarily paid on a street assessment can not be recovered 
back ; nor can it be refunded by the city, no Ind. 259. 

.16. An acceptance of Avork done \s prima facie evidence that the work had 
been done according to the contract, 42 Ind. 134; 118 Ind. 275. 

17. Where the property assessed is couiity .property, as a public square or 
court-house or jail-yard, the contractor must present his estimate to the board 
of county commissioners, 36 Ind. 87. 

18. An estimate maybe assigned, and if ratified by the covmcil the assignee 
may collect it, 109 Ind. 227; 121 Ind. 534. 

19. A proper assessment is the basis for a precept, and unless such an as- 
sessment has been made the precept is void, 92 Ind. 200; and a new assessment 
can not relate back to render the precept valid. For this error, the transcript is 
liable to demurrer on appeal, 41 Ind. 21S. But a ne-cv assessment may be made, 
and a new precept issued, 41 Ind, 21S. 

ADDITIONAL NOTE. 

20. The following irregularities are held to be iatal to an assessment: Omis- 
sion to pass resolution declaring it necessary to improve, 18 O. S. 85, 27 O. S. 527 ; 
2 Bull. 337; assessment of property not designated in the ordinance to improve, 
34 O. S. 468; 56 Cal. 508; or omission of property which should have been as- 
sessed, 51 Cal. 15; 10 Wis. 196; collusion between city officers and bidder, by 
which the latter is falsely made to appear the lowest, 17 Bull. 116 (motion for 
leave to file petition in error in S. C. refused in this case, 17 Bull. 208). 

21. Estoppel to deny the legality of an assessment may arise (i) by active 
participation in having an improvement made, 31 O. S, 592; or (2) by standing 
in silence without objecting, 39 O. S. 281. 

Active participation. One who promises to pay the assessment, if the im- 
provement is made will be estopped, 22 O. S. 584; or petitions and asks that the 
whole amount be assessed in a certain manner, 21 Bull. 62. The mere signing 
a petition for an improvement will estop the petitioner from denying the power 
to grant the prayer of the petition, 31 O. S. 592, but will not estop him from 
setting up irregularities in subsequent proceedings, under the petition. Ibid. 39 
O. S. 281; 22 Mich. 104; 56 N. Y. 257. But signing a petition, together with 
active participation or encouragement in causing £.n improvement to be made, 
will estop the signer, 39 O. S, 281. 

Silence. To be estopped by silence the owner must have known, i. That 
the improvement was being made; 2. That the authoi-ities contemplated paying 
for it by an assessment on abutting property ; 3. That the defect on which he is 
insisting existed ; and 4. Some special benefit must have accrued thereby to his 
property, 39 O. S. at page 303. For other cases on estoppel see 15 O, S. 64; 29 
O. S. 500; 25 O. S. 169; 36 O. S. 601. See note 13. 

22. Other defenses. Where notice to persons claiming damages was re- 
quired to be given by assessing committee, one who had no claim can not object 
because such notice was not given, i O. S. 126; no objection to assessment on 
separate parts of a street, if omitted part w^as so designated in ordinance, i(> O. 
S. 284; arrangements between third parties and contractor can not atfect the 



1 64] 



CITIES. 



[218 



liability of lot-owners, 26 O. S. 275. Premature assessment can not be col- 
lected, 26 O. S.345. No defense to an assessment that a street has been changed 
from a canal to a street without new condemnation, or that a railroad company 
has been given right to lay a track therein, 31 O. S.506. No objection to assess- 
ment that two streets which form continuous line of travel, though called by 
different names, are improved as one, 2 Bull. 337. There may be tvv'O contracts 
and tvro assessments for different kinds of work under one resolution to im- 
prove, 3 Bull. 556. Two or more persons, claiming relief on the same ground, 
mav join in action to restrain the collection of an assessment, or one may sue 
on behalf of all others whom he represents, 24 O. S. 232. 

23. Where the plaintiff in an action to enjoin an assessment admits part of 
it to be legally due, he must pay or tender such part, as a condition to an in- 
junction against the remainder, 16 O. S. 614; 3 O. C. C. 493. 



A First and Final Estimate. 



Office of the City Civil Engineer^ , , 18 — . 

To the Commo7i Council of the City of ; 

I hereby make a report of a first and final assessment in favor of 
, for work done in the improvement of street from to 



as heretofore ordered by your honorable body, viz. 





Description. 




,f 


Addition or 
\ Sub- 
i Division. 


P^eet 


Inches 


Total Assess- 
ment for 


Owners" 




For 




Names. 






1 

Lot. 


Square. 


Out-lot 


Dollars 




1 




Cts. 


1 


! 
















i 


















1 








j 












j 

i 







' 












Total, 



I hereby certify that the above estimate is correct. 



City Civil Engineer. 



Estimate Resolution. 



Resolved, b}' the common council of the city of — 
mate of the city civil engineer, in favor of , contractor for the 



, That the esti- 



resolution adopted 



18- 



be and the same is hereby ap- 
1. That the assess- 



pursuant to 

proved and allowed [t?r, amended as follows: 
ments set forth in said final estimate [as so altered and amended] are hereby 
approved and confirmed; and there is hereby assessed against the several lots, 
and parcels of ground, as described in said estimate, the several amounts set op- 
posite and assessed against said several lots and parcels of ground therein de- 
scribed, respectively, for and on account of said improvement. 

The city clerk is hereby directed to issue to said a certified copy of 

said estimate. 



9] 



IMPROVEMENT OF STREETS. 
Clerk's Certified Copy of Estimate. 

A FIRST AND FINAL ESTIMATE ALLOWED. 

Office of the City Cleric, 



[§3165 



•,iS^. 





Description. 


Number of 


Addition or 

Sub- 

Division. 


Feet 


Inches 


Total Assess- 
ment for 


Owners' 
Names. 


For 








Lot. 


Square. 


Out-lot 


Dollars 








Cts. 

























































































1 




Total, 












I hereby certify that the above estimate is correct, and was approved bv the 
common council of said citv, on the day of , 18 — . 



City Clerk. 

Sec. 3165. Payment, how enforced, 71. In case any of the own- 
ers of lots or parcels of ground on which such assessments have 
been made shall fail or refuse, for the space of twenty days after 
the date of the estimate, to pay the amount thereof due by such 
person to such contractor, such contractor shall file his affidavit in 
the clerk's office of said city, stating that the whole or some part 
of said assessment remains unpaid, showing the amount paid and 
the amount due; that the estimate thereof has been duly made, 
and that the work estimated has been done according to contract. 
It shall be the duty of the clerk, at the next or any subsequent 
meeting of the common council, to report the said affidavit to the 
council, whose duty it shall be to cause a precept to issue for the 
collection of such assessment, or any unpaid balance thereof; which 
precept shall be signed by the mayor and attested by the clerk, 
and sealed with the seal of said city, and shall set forth the name 
of the person against whom the assessment is made ; the descrip- 
tion of the lot or land on which it is made; the amount' of such 
assessment; and the date of the estimate; which shall be directed 
to the treasurer of such city, commanding him to make such assess- 
ment, or unpaid balance thereof, within ten days after receiving 
such precept, of the owner in whose name such assessment is made ; 
which precept the clerk shall forthwith deliver to the treasurer, who 
shall serve the same by reading the same, personally, to such own- 
er, or by leaving a copy of such precept at his last or usual place 
of residence; or, if such owner be unknown, or not a resident of 



§ 3165] CIIIES. [220 

such city, then by pubHcation for three successive weeks in a weekly 
newspaper printed and published in the city, briefly setting forth 
the facts of the estimate, the amount due, that the work has been 
done as contracted, the name of the person whose property is to 
be sold, the description of the property, and the date of the order 
of said precept by the said council, and giving notice that if such 
assessment be not paid within twenty days after publication, he 
will proceed to make the same by levy and sale of the lot or land 
whereon the same is assessed. Any owner of land, or his repre- 
sentatives, aggrieved by such precept, may appeal therefrom, within 
twenty days after such. demand or publication, to the circuit court 
of the county wherein such city is situated, upon filing sufficient 
bond with the clerk of said city, conditioned for the payment of 
whatever judgment may be rendered against such appellant in said 
court; and such appeal shall stay all proceedings by such treasurer. 
And the trial of such appeal shall be conducted as other trials of 
civil causes are conducted in said court : Provided^ That no ques- 
tion of fact shall be tried which may arise prior to the making of 
the contract for the said improvement under the order of the council. 
The clerk shall, upon the filing of said bond, forthwith make out 
and certify, under his hand and official seal, a true and complete 
copy of all papers connected in any way with the said street im- 
provement, beginning with the order of the council directing the 
work to be done and contracted for, and including all notices, pre- 
cepts, orders of council, bonds, and other papers filed in said mat- 
ter; which transcript shall be in the nature of a complaint, and to 
which the appellant shall answer upon rule. And in case the court 
and jury shall find, upon trial, that the proceedings of said officers, 
subsequent to said order directing the work to be done, are regular; 
that a contract has been made ; that the work has been done, in 
whole or in part, according to the contract; and that the estimate 
has been properly made thereon, — then said court shall direct the 
said property to be sold and conveyed by the sheriff' thereof, as the 
said treasurer is hereinafter directed to sell and convey property 
liable to street improvements: Provided, That nothing herein shall 
be so construed as to prevent any person from obtaining an injunc- 
tion upon the proceedings prior to the making of any such improve- 
ments. If no such appeal shall have been taken as aforesaid, it 
shall be the duty of such treasurer, within ten days after the expira- 
tion of said twenty days, to levy said precept upon the lot or land 
therein described, and to sell the same, or so much thereof as may 
be necessary to pay such assessment with costs and charges. But 
before any such sale, he shall give notice of the time and place 
thereof, by advertising the same for three weeks successively in a 
newspaper printed and published nearest to such lot or land, if any 
such be printed and published vvithin the county wherein such city 
is situated, and by posting up written or printed notices thereof in 
at least three pubHc places in said city. And every such sale shall 



22 1] IMPROVEMENT OF STREETS. [§31^5 

be by public auction, and upon or near the premises or in the city 
court-room of said city, in the discretion of said treasurer. And no 
sale of said lot or land previous or subsequent to the date of such 
estimate, and subsequent to the date of such petition or determina- 
tion of the com.mon council to make such improvement without 
petition, shall invalidate or affect any sale thereof in pursuance of 
this act. Upon the sale of any lot or land by virtue of such pre- 
cept, and the payment of the purchase-money, the treasurer (or, in 
case of his death or going out of office, his successor) shall execute, 
acknowledge, and deliver to the purchaser a certificate of convey- 
ance for the premises; which shall be valid and effectual to convey 
all the right, title, and interest of any such owner or purchaser from 
him as aforesaid, except as hereinafter provided, and shall be prima 
facie evidence of all the facts recited therein. In case the pur- 
chaser of any real estate under a precept, as aforesaid, having paid 
the purchase-money therefor, shall die before a certificate of con- 
veyance, as herein provided, shall have been executed to him, the 
treasurer shall convey the same to the heirs or devisees of such 
deceased purchaser. The proceeds of any such sale shall be applied 
as follows, to wit : Firstly, To the payment of such assessment, with 
interest thereon from the date of such estimate, and all costs accrued 
thereon by reason of said sale ; and. Secondly, The residue of such 
proceeds shall be paid to the owner, or his or her heirs or repre- 
sentatives, of such real estate, or, if unknown, it shall be paid into 
the city treasury ; and such city shall at all times be responsible to 
such owner, heirs, or representatives for such residue. The pur- 
chaser under such precept shall hold such real estate subject to the 
lien of the unpaid part of its proportion of the whole cost of the 
improvement. The treasurer shall be entitled to a commission of 
five per cent, on the first hundred dollars, and three per cent, on 
any excess above that sum ; but when the money is paid to him 
without sale, one-half commission only shall be received by him. 
For levying on the real estate and advertising the same, he shall 
receive one dollar; for personal demand for payment, twenty-five 
cents ; for return of the precept, with his doings thereon, one dol- 
lar ; for making certificate on sale of real estate, one dollar. He 
shall indorse on said precept the time of receiving the same, and, 
within three months thereafter, he shall make return thereof to the 
clerk, with his proceedings thereon. Any purchaser failing to pay 
the purchase-money shall be subject to the like penalties and pro- 
ceedings as purchasers at sheriff's sale are by the laws of this State. 
The owner of any lot or land sold as aforesaid, or his agent or at- 
torney, heirs or representatives, may redeem the same at any time 
within one year after the day of sale, by paying to the purchaser, 
or to the city treasurer for the use of the said purchaser, or his 
heirs or assigns, the sum mentioned in his certificate and the amount 
of all subsequent assessments paid by the purchaser, with fifty per 
cent, on the whole sum, and interest from date of purchase or time 



§ 3i^5J CITIES. [222 

of payment : Provided, That infants, idiots, insane persons, and 
femes covert may redeem any such lot or land belonging to them, 
sold for assessment as aforesaid, within one year from expiration 
of such disability. Claimants of a part of such land, or of any un- 
divided part ot the same, may redeem the Avhole as other owners 
may redeem. If such owner, or any person on his behalf, shall 
fail to redeem such land within one year as aforesaid, at the ex- 
piration thereof, and on production of the certificate of purchase, 
the treasurer shall execute to the purchaser, his heirs or assigns, in 
the name of the city, a conveyance of the real estate so sold ; wdiich 
shall vest in the grantee an absolute estate in fee-simple, subject, 
however, to all claims which the city may have thereon for assess- 
ments or liens or [other] incumbrances. Such certificate and final 
conveyance shall resemble, as nearly as may be, the certificate and 
conveyance for tax sales, and hQ prima facie evidence of all the facts 
recited therein. 

This section is constitntio7ial,not falling within theclau.«'e prohibiting special 
legislation regulating the practice in the courts, 41 Ind. 406. For satisfying 
■ftci,rds where land is sold, see § 3--9-''. 

2 This section was 7iot repealed by § 3i65ir?, but only modified so far as to 
require that assessments against unflatted lands must be enforced by proceed- 
ings in the circuit court, instead of by precept issued to the city treasurer; for 
the enforcement of assessments against platted lands within the city limits, a 
precept must be still issued, 114 Ind. 246. See 108 Ind. 189. The right of ap- 
peal from the apportionment of costs, under § 3163, is reserved by this section, 
90 Ind. 567. 

3. There is no personal liability upon a street assessment. See 41 Ind. 406; 
16 Ind. 215; 109 Ind.; p. 350; unless the land-owner appeals and judgment is 
rendered against him, 109 Ind. 347. 

4. The right to collect his claim can not be taken away from a contractor, 
29 Ind. 329. 

5. Until an affidavit is filed, no precept can be issued, and if issued it is 
void; and on appeal, if the transcript shows an insufficient affidavit, it is bad on 
demurrer, 114 Ind. 397 " The affidavits authorize the precept as a judgment 
authorizes an execution," 52 Ind. 411. It must embodj', in a substantial man- 
ner, all the requirements o( the statute, 114 Ind. 397; 40 Ind. 235; 41 Ind. 221; 
and aver that the estimate v»ras " duly made," 33 Ind. 442. It should show the 
amount for which each lot is liable, although the different lots belong to the 
same owner, 40 Ind. 235. Where a new assessment was made because the first 
was defective it was held that if the old did not conform to the new assessment, 
a new affidavit was necessary, 40 Ind. 235. The affidavit can not be amended on 
appeal, but the proceedings may be commenced again by the filing of a new 
affidavit, 40 Ind. 235. 

6. Partial estimates need not be included in the transcript; and if a com- 
plete and corrected estimate of the cost has been made and adopted hj the 
council, instead of the partial estimates made during the progress of the work, 
the omission of such partial estimates from the transcript does not render it in- 
sufficient, 65 Ind. 421; nor is the final estimate affected by a previous order 
refusing to make an estimate, 109 Ind. 227. 

7. Without an estimate 2i precept is void, and maj^ be e7ijoined, 92 Ind. 200. 
But questions as to the taking of the "yeas" and "nays" on the passage of the 
ordinance, as to the amount of the estimate and as to a mistake in describing 
the property, can not be presented on a complaint for an injunction, 109 Ind. 347. 

8. Standing by, and seeing the work completed and accepted, v,-ill preclude 
any one insisting that it is not done according to contract, or that the material 
used was not such as the contract called for. In such an instance the person 



223] IMPROVEMENT OF STREETS. [§31^5 

desiring to object must proceed by injunction before the acceptance of the 
work, and must tender to the contractor the value of the improvement as com- 
pleted, 34 Ind. 36. Standing by and seeing the work done w^ill be an estoppel, 29 
Ind.329, 30 Ind. 192; 118 Ind. 275 ; 122 Ind. 167. See § 3164, ?iofes 13 and 21. 

9. " The law does not require a literal and exact performance of the work 
according to the contract, but it does require a substantial compliance with the 
contract," 42 Ind., p. 140; 22 Ind. 491. 

10. Mandate lies to compel the issuance of a precept, even where there is a 
controversy over the amount due, 29 Ind. 99; 43 Ind. 347. 

11. The flans and specifications of the engineer are admissible as evidence 
in the suit to collect the assessment, 109 Ind. 227. 

12. If the work is completed by two joint contractors^ and 07ie die after 
assessment made, the precept issues in the name of both upon the affidavit of 
the survivor, 90 Ind. 567; and in any event, where there are joint contractors, 
the affidavit of one is enough, 118 Ind. 275. 

13. The notice of sale is a publication for twenty-one days, and not simply 
three insertions in a weekly newspaper, 56 Ind. 253. 

14. The doctrine oi caveat e^nptor applies as fully to sales of property for 
street improvements as to any other analagous sales, no Ind. 259; nor is the 
city concluded by a recital in the deed that the lands were legally liable to an 
assessment, no Ind. 259. 

15. There is no statute authorizing the refunding oi money \o\\m.\.d,x\\y paid 
upon an erroneous or irregular street improvement, or even upon a wrongful 
assessment, no Ind. 259. 

16. The recitals in a deed may be shown to be untrue, and thereafter the 
courts will so treat them, 81 Ind. 495. 

17. The clerk can not issue a precept tvithojit an order of the council; and 
if he does it is void, and may be enjoined, 81 Ind. 495. So a sale where the 
affidavit shows that nothing is due^ is void, 38 Ind. 442. 

18. Mere ?Vr^^z^/^r77z>5 on the proceedings can not be tried upon an in- 
junction,hvit only questions as to the power and jurisdiction of the council, 109 
Ind. 347; nor will the proceedings be enjoined because of trespass on adjoining 
land, 30 Ind. 414. 

19. A sale of tzvo or more lots assessed jointly and belonging to the same 
person is not void, but only voidable; and a sale thereunder, where no steps are 
taken previous to the sale to correct the error, is valid. In such an instance the 
precept can be ajnended by the assessment and affidavits, 52 Ind. 411. 

20. The precept should contain z. description o'l the property^ which should 
correspond with that described in the estimate and in the affidavit, 48 Ind. 116; 
and parol evidence is not admissible to show that only one lot Avas affected 
where the description in the affidavit or precept and the estimate are different, 
81 Ind. 495. 

21. The precept ranst he sigjied hj ihemsiy or \ and is void if not, or if signed 
by the acting president of the council, 32 Ind. 140. 

22. A void precept and assessment maj' be enjoined^ 34 Indt 140 ; 92 Ind. 
200; 81 Ind. 495; and it was isaid that it can inot be appealed from, 52 Ind. p. 
418, but this is very doubtful. 

23. On appeal the tra?iscript stands as a complaint, and is subject to a 
demurrer, 65 Ind. 421; but, although irregularities or errors may be disclosed by 
the transcript, a demurrer will not lie, unless the errors or irregularities affirm- 
atively appear to have occurred after the contract was entered into with the 
city, 121 Ind. 534; 122 Ind. 167. If there is any defense, except a jurisdictional 
one, it must be made by way of answer, in order to give the contractor an op- 
portunity to avoid it, if he can, by way of reply, 121 Ind. 534. 

24. Ifanythingis(97«///e^, or erroneously stated, from or in the transcript on an 
appeal, a motion lies in the circuit court for a ceriiorari\\Y>on, or order against the 
city clerk to supph^ the omission, 65 Ind. 421 ; 29 Ind. 329; 40 Ind. 235; and if 
all the proceedings have not been entered in the records of the council, a nunc 



§3165] CITIES. [224 

fro tunc entry may be therein made upon motion, and the record as corrected 
certified to the circuit court, 118 Ind. 275; 17 Ind. 318 ; 41 Ind. 218. 

25. On appeal no question of fact can be tried which may arise friar to 
the making of the contract. " If any irregularities occur prior to that act, 
they must be 'taken advantage of by an injmiction suit before the work is per- 
formed. By omitting thus to proceed, the party waives objection up to the 
making of the contract," 17 Ind. 175 ; 22 Ind. 491 ; 30 Ind. 192; 65 Ind. 421 ; 62 
Ind. 57 ; 114 Ind. 200, 397 ; 109 Ind. 227; 118 Ind. 275; 121 Ind. 534 (overruling 
38 Ind. 198, 233, and 45 Ind. 438); but see 42 Ind. 134. The clause thus limiting 
the inquiry is constitutional, 22 Ind. 491; 121 Ind. 534. Thus it is not compe- 
tent for the circuit court to inquire whether the petitioners for the improve- 
ment were residents of the city, or whether the petition had been signed by the 
requisite num.ber of persons owning property on the street, or whether two- 
thirds of the councilmen concurred in making the improvement without peti- 
tion ; or whether the contractor was tlie lowest and best bidder ; or into any other 
fact which arose before the making of the contract, 22 Ind. 491 ; not even the 
insufficiency of the advertisement for bids, 52 Ind. 411; 114 Ind. 200, 397 ; 109 
Ind. 227. So it can not be shown that the place improved is not a street, 29 Ind. 
329 ; 65 Ind. 421 ; the presumption being that the place improved was a regularly 
laid out or dedicated street, 34 Ind. 497; nor that the land-owner was entitled to 
the surplus earth, 118 Ind. 275 ; 121 Ind. 534. But if the transcript upon its face 
shows a defect, and not a mere irregularity, prior to the making of the contract, 
that maybe raised by a demurrer it has been held (but this can not now be done, 
probably, 121 Ind. 534) ; see 38 Ind. 233; 2oInd.3i5; 19 Ind. 135; as the absence 
of an advertisement, 45 Ind. 438; lack of quorum, 38 Ind. 198; 41 Ind. 406; or 
bids, 38 Ind. 198; or contract, 17 Ind. 318. So if there be a total lack of proceed- 
ings prior to the contract, any one not estopped by his conduct or silence may 
proceed to enjoin the collection, 38 Ind. p. 241 ; 121 Ind. 534; and so if it shows 
affirmatively that the requisite number of councilmen did not vote for the pro- 
posed improvement, 20 Ind. 315; 38 Ind. 198; 40 Ind. 310; but not a remon- 
strance, 41 Ind. 406 ; nor partial estimates, 65 Ind. 422. 

27. If the appellate court holds the proceedings back to a certain point void 
or irregular, and reverses them, the contractor may begin anevj with that point 
and proceed to the collection ; but if the proceedings are held valid on the land- 
owner's appeal, he can not insist that a new precept be taken out, nor can the 
contractor do so; but he has a right to an execution on such judgment, 109 Ind. 
347. In the latter in&tdince all questions before the court are settled ; including 
the validity of the estimate and the sufficiency of the description, 109 Ind. 347. 

28. The co7itractor must take notice and ascertain at his peril that all neces- 
sary steps have been taken to fasten liability on the land improved, 16 Ind. 227 ; 
42 Ind, 107 ; for under no event can the citv be held liable except for street and 
alley crossings, 16 Ind. 227; 13 Ind. 245. 

29. Nultiel record is not a good plea on appeal, 52 Ind. 411. 

30. On appeal from the precept the contractor is plaintiff and the appeal 
bond is payable to him, 42 Ind. 115. 

31. Under z. general denial W^q contractor must show that all proceedings 
subsequent to the order directing the work have been regular, or at least subse- 
quent to the letting of the contract, there being some confusion in the cases on 
this point, 41 Ind. 221; 121 Ind. 534; but the incorrectness of an estimate can 
not be shown without an answer, the court presuming that the council and citj' 
engineer did their duty, 118 Ind. 275; 121 Ind. 534. 

32.' Costs which accrue on appeal are adjudged against the losing party 
personally ; but the costs of making the sale are paid out of the proceeds of the 
sale of the property, 41 Ind. 406. 

33. The oiily questions that can be tried on appeal are that the work, in 
whole or in part, has been done according to the contract, that estimate thereon 
has been properly made, a proper affidavit filed, and precept ordered, 30 Ind. 192; 
121 Ind. 534. 

34. An appeal must be taken zvithin tiventy days after demand by the treas- 
urer, or after the last day of publication ; but if a precept is- aba^idoned by the 
council, and upon a new order a second one issues, the time within which an 



225] IMPROVEMENT OF STREETS. [§3^65 

appeal must be computed is from the time of service of the second precept, 28 
Ind. 27S. 

35. The city may require the contractor to give a hand; and the fact that a 
school trustee of the city is the sole surety on the bond, signing it as an indi- 
vidual, does not avoid it, 122 Ind. 167. 

36. An rxtion to quiet title to the land sold or assessed, lies, but no question 
frior to the making of the contract, in such an action, can be tried. But in 
such an action the court may correct an error of the city civil engineer in 
estimating the v."ork done under the contract, and assessable against the lot, and 
other irregularities occurring subsequently to the making of the contract, and 
and set the sale aside ; and having ascertained the amount due, may adjudge it 
a lien on the land and order it sold, 123 Ind. 167. 

37. In a collateral attack upon the right of the city to enforce its assess- 
ments, every presu7npti07i will be taken in iavorof the action of the city and its 
officers, and unless the complaint discloses a state of facts which show clearly 
that the assessments are void, the right to enforce their collection will be pre- 
sumed, 121 Ind. 331. 

38. In the case of a sewer, the city paid the cost of the improvement, and 
then \v2i^ precepts issued in its own name, and this was held a valid proceeding, 
121 Ind. 331. 

39. Lien for an assessment, made after land has been sold, has priority over 
purchase money mortgage, 3 Bull. 272; 6 Rec,687; 2 Cow. 118; it takes prece- 
d nee to any lien with which the owner may charge his land, 73 Mo. 507. 

40. The property subject to the lien is determined by the situation thereof 
at the time of the estimate, § 3164, ;zo/£? 11 ; and is not affected by subsequent 
changes of title, 29 Ohi. St. 165 ; 36 Cal. 83. 

Affidavit for Precept. 

State of Indiana^ County^ ss. 

Before me, , a notary public in and for the county and State 

aforesaid, personally appeared , and, being dulj^ sworn, upon his oath 

says, that heretofore, to wit: On the day of , an estimate was duly 

allowed and certified to by , city civil engineer of the city of , 

for work done by under certain contract with said city for . 

That by said estimate it appears that the sum of dollars and 

cents is assessed against , city of , county, Indiana, owned by 

, of Avhich sum dollars and cents has been paid, and there 

now remains due and unpaid the sum of dollars and cents. That 

the work estimated has been done according to contract, and the said estimate 
has been duly made in accordance with an order from the common council of 
the city of . 



Sworn and subscribed to "before me, this day of , A. D. iS- 



Notar}- Public. 

Precept issiied and delivered to the sheriff of countv, the dav 

of , iS— . 



City Clevk. 

Journal Entry. 

Whereas. has filed an affidavit showing that there is still duo 



§3165] 



CITIES. 



[226 



for work performed in the improvement of street, upon Avhich said lot 

abuts, according to a resolution of this council adopted on the day of 

, i8 — , and the contract of said with the city for the improvement 

of said street ; it is therefore ordered that a precept be issued upon said affidavit 
for the collection of said amount now so due. 



State of I?idiana, 
The Citv of- 



Precept. 

- County, S3: 
to , Tj'casnrer of said City 



Whereas, It appears by the affidavit of 



duly certified and filed 

with the clerk of said city, that an estimate for work done by said , under 

certain contract with the said city for the , was, on the day 

of , i8— , duly allowed and certified to by the city civil engineer 

of said city, by which said estimate it appears that the sum of dollars 

and cents is due to the said from , being the amount assessed 

against owned by said . 

And whereas. It further appears by the said affidavit that the work estimated 
has been done according to contract, and that said estimate was duly made; 

that there has been dollars and cents paid thereon, and that there 

now remains unpaid the sum of dollars and cents, so assessed as 

aforesaid, and that said sum is still due and unpaid. 

Now, therefore, you are hereby commanded to make said sum of 
lars and cents, bv demanding payment thereof from the said 



— dol- 
— , and 
in default of payment thereof within twenty days after such demand, tliat you 
within ten days after the expiration of twenty days, lay this precept upon the 
premises hereinbefore described, and sell the same, or a sufficient part thereof 
to satisfy said assessment and costs of this writ; and of your proceedings here- 
in, and of this writ, make due return to the clerk of said city within three 
months next hereafter. 

Witness mv hand and the cornorate seal of the citv of , this 

day of , A. D. iS— . 



Attest: 



Mavor. 



[City Seal. J 



Citv Clerk. 



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22/] IMPROVEMENT OF STREETS. [§31^5 

Notice to Non-Resident. 

Notice is hereby given to whomsoever it may concern, that upon the 
day of , i8 — , the common council of the city of , Indiana, 



ordered that street, from to ,be improved at the expense of 

the lots abutting thereon, and advertised for bids therefor; that in pursuance 

of said advertisement bid for the same and the contract therefor -was 

awarded to him bv said council on the ■ -day of , i8 — ; that in 

pursuance of said contract he has performed said work; that the civil engineer 
of said city made a final estimate and apportionment of the cost thereof and re- 
ported the same to said council on day of , i8 — , which estimate was 

approved and accepted by said council by resolution duly entered of record; that 

upon the ■ day of , i8 — , said filed his affidavit in the clerk's 

office of said city, showing that there is due upon the following lot, owned by 
, the sum of dollars and cents, viz.: lot of ad- 
dition to the city of , Indiana ; and thereupon, on the ■ day of , 

i8 — , said council ordered that a precept be issued against said lot for the collec- 
tion of said sum of dollars and cents; which precept, in pursu- 
ance of said order, was issued and delivered to me on the day of , 

iS — . Notice is, therefore, hereby given that if said sum of dollars and 

cent.r be not paid within wenty days from the day of , i8 — , 

I will proceed to make the same by levy and sale of said lot. 



Treasurer of the City of — . 

Sale for Street Improvement. 

By virtue of a certain precept to me directed by the mayor of the city 
of , Indiana, and duly attested by the clerk of said city, under the cor- 
porate seal of said city, I will on Saturday, , i8 — , sell, at public auction, 

at the city court-room, between the hours of lo o'clock a. m. and 4 o'clock p. 
m. of said day, the following described lot, or parcel of land, or so much thereof 
as maj^ be necessary to satisfy the sum hereinafter named as assessed against 

said premises for street improvement and all costs, to wit: Lot , in the 

city of , county, Indiana, owned by , against which is assessed 

the sum of for street improvement, in favor of , contractor. 



Citv Treasurer. 

Ind., , j8— . 



Certificate of Sale. 

City of , Treasurer s Office^ , iS — . 

I, , treasurer of the city of , in the county of , and 

State -J>f Indiana, do hereby certify that, pursuant to an act of the general as- 
sembly of the State of Indiana, entitled "An act to amend an act, entitled 'An 
act to repeal all general laws now in force, for the incorporation of cities, pre- 
scribe their powers and rights, and the manner in which they shall exercise 
the same, and to regulate such other matters as properly pertain thereto,' " ap- 
proved March 14, 1867, I did, on the day of , A. D. iS — , oifer for 

sale at public auction, in the city court-room of said city, the smallest part of 
the following real estate, to wit: That any one would take and pay the sum of 
dollars and cents, being the amount assessed against said prem- 
ises as the property for street improvement and the costs of this proceeding, 
and having no bid or offer for any part of said real estate less than the whole, 

did then and there, in manner aforesaid, sell the same, to wit: , in 

the city of , county, Indiana, to for the sum of dol- 
lars and cents, to me at the time in hand paid, that being the highest 

and best price then and there offered for the same. 

Now this is to certify, That the said , his heirs or assigns, Avill be en- 



3i65] 



CITIES. 



[228 



titled to receive a deed for said above described premises, at the expiration of 

one year from the said ■ day of , A.D. 18 — , unless the owner thereof, 

or his proper representative, shall, on or before said day, redeem the same, ac- 
cording to the provisions of the act aforesaid. 

In ^vitness whereof, I have hereunto set my hand, this day of . 

iS— . 



State of Indiana^ 



Before me, 



Treasurer of the City of . 

Cozcnty, ss: 

— , a notary public within and for said county, person- 
ally came the above named , treasurer of the city of , and acknowl- 
edged the execution of the above and foregoing certificate for tlie uses and pur- 
poses therein mentioned. 

Witness my hand and notarial seal, at , thrs day of 

18—. 



Assignment. 



Ind., 



18- 



For value received, The within certificate is hereby assigned and trans- 



ferred to 



State of Indiana, 



Coiinty, ss: 



Personally appeared before the undersigned, a notary public, this day 

of , iS — , the above named , and acknowledged the foregoing as- 
signment to be his act and deed. 

Witness my hand and notarial seal. 

















Notary Public. 


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Deed. 



Whereas, did, on the 

signed —, treasurer of the city of- 

bearing date the day of 



day of 



— , 18 — , produce to the under- 
a certificate of purchase in writing, 
, signed by , who, at the last 



229] IMPROVEMENT OF . STREETS. [§31^5 

mentioned date» was the treasurer of said city, from which it appears that the 

said —did, on the day of , 18 — , purchase at public auction, in 

the city court-room of said city of , the tract, parcel, or lot of land lastly 

in this indenture described, and which lot was sold to for the sum of 

— ,' being the' amount due on the following tracts or lots of land returned 

delinquent in the name of , for the non-payment of an assessment for 

street improyements, made by the common council of said city against said lot 

or parcel of land, on, the day of , 18 — , yiz.: , which said lands 

had been returned among other tracts in the office of the city clerk as delin- 
quent for the non-payment of the street assessment aforesaid. 

And whereas, the common council of said city on the day of , 

iS — , caused a precept to issue for the collection of such assessment directed to 
the treasurer of said city, commanding him to make such assessment according 

to law, which said precept came to the hands of said treasurer on the 

day of , 18 — , and said treasurer not being able to make or collect such 

assessment as in said precept otherwise commanded on the day of , 

iS — , laid said precept on said tract or parcel of land hereinbefore described, 

and having advertised the same for sale, according to law, did, on the said 

day of , 18 — , sell the lot or parcel of land hereinafter described, to the 

said , as aforesaid, for the sum aforesaid. 

And whereas, 

And it appearing tha.t the said is the legal owner of said certificate of 

purchase, and the time fixed by law for redeeming the land therein described hav- 
ing now expired, and noneof thesaving clauses of the 69th section of chapter XV., 
of the laws of the State of Indiana of 1867, applying to this tract or parcel of 

land, and neither the said , nor any person in his behalf, having paid or 

tendered the amount due the said on account of the aforesaid purchase; 

and the said having demanded a deed for the tract of land mentioned in 

said certificate, and which was the least quantity of the tract first above des- 
cribed that would sell for the amount due thereon for the assessment, costs 
and charges as above specified ; and it appearing from the records of.said com- 
mon council of said city, in the city clerk's office, that the aforesaid lands were 
legally liable for such assessment, and had been duly assessed and properly 
charged on the records of said common council, with the street improvements 
aforesaid. 

Therefore, this indenture, made this day of , 18 — , between the 

city of , by , the treasurer, and , the mayor of said city, of the 

first part, and , of the second part, witnesseth: 

That the said party of the first part, for and in consideration of the premises, 
has granted, bargained and sold unto the said party of the second part, his heirs 
and assigns forever, the tract or parcel of land mentioned in said certificate, as 

described as follows, viz.:^ , to have and to hold the said last mentioned 

tract or parcel of land, with the appurtenances thereunto belonging, to the said 
party of the second part, his heirs and assigns forever; in as full and ample a 
manner as the said treasurer of said city is empowered to sell the, same. 

In testimony whereof, the said , treasurer, and , mayor of said 

city, hereunto set their hands and affix the seal of said city the day and year 
last above written. 



Treasurer of the Citv of 



Mayor of the City of . 

State of Indiana, County. 

Beford me, the undersigned, a in and for said county, this day 

personally came the above named , treasurer, and , mayor of the 

city of , and acknowledged that they signed and sealed the foregoing 

deed, for the uses and purposes therein mentioned. 

In witness whereof, I have hereunto set my hand and seal this 

day of -: — Tj 18—. 



3i65] 



CITIES. 



[230 



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Appeal Bond. 



severally acknowledge ourselves bound unto 
— dollars. Witness our hands and seals this 



has appealed from a precept issued on the - 

— , State of Indiana, against lot 

addition to said city, owned bv said , in favor of said - 



Whereas said 

of , 18 — , by the city of 



dav 
- of 
, for 



the collection of the sum of 



dollars: Now, if said 



shall prosecute 



his appeal to final judgment, and pay such judgment as may be rendered against 
him on such appeal, this bond shall be void; else in force. 

rSeal.l 



[Seal. 



Taken and approved by me this 



dav of 



-, iS- 



Clerk of the City of 



Transcript. 



Be it remembered, That the following proceedings were had and held 

before the common council of the city of , State of Indiana, at the times 

hereinafter stated, as appears from records thereof, viz.: 

On the day of , iS — , the following resolution was intro- 
duced, viz.: 

[Se^ out resolution for improvement ^^ 
M-hich resolution was adopted, as appears from the following entry in Record 

, page . 

\Set out yourncl c:!try.] 
In pursuance of said order of improvement the following notice was pub- 
lished in the Daily Arg-us, from the dav of , 18 — , to the 

day of , iS — , as appears from the affidavit hereinafter set out, viz.: 

[Set out notice and affidavit.'] 
In pursuance of said notice the following bid was received by said common 

council on the day of , 18 — , viz.: 

[Set out hid of contractor, 1 

which bid was accepted, as appears from the following entry in Record , 

on page , entered of record on the day of , 18 — , viz.: 

[Set out acceptance of hidf\ 



231] IMPROVEMENT OF STREETS. [§3165^ 

whereupon the following contract and bond was executed bv the said , 

viz.: 

[Set OJit the contract and bond.\ 

On the day of , iS — , the civil engineer of said city filed the 

following estimate, viz.: 

\Sct out as3€ss7ncnt^'\ 

which estimate was approved and adopted by said council on the day of 

, iS — , as appears of record in Record , on page . 

ySet out Jojirnal entry. \ 

On the day of , iS — , said filed the following afiidavit in 

the office of the clerk of said city, viz.: 

\Set out affidavit for frecept^\ 

and thereupon, on the day of , 18 — , the following proceedings 

were had before said council, as appears in Record , on page , viz.: 

\Sct out order for precept.] 

In pursuance of said order the following precept was issued on the 

day of , 1 8 — , to the treasurer of said city, viz.: 

[Set out the precept. \ 
which precept is indorsed as follows, viz.: 

\_Set out the treasurer s indorsements of service.] 

Thereupon, on the day of , 18 — , said filed the following 

appeal bond with the clerk of said city, viz.: 

[Set out appeal hond.\ 

I, , clerk of the city of , State of Indiana, hereby certify that the 

above transcript contains true and complete copies of all papers in any way con- 
nected with the street improvement therein referred to, beginning with the 
order of the common council directing the work to be done and contracted for, 
and including all notices, the precept, order of council, bonds, and other papers 
filed in said matter. 

In testimony whereof, I have hereunto set my hand, and the seal of said 
city, this day of , 18 — , 



[City Seal.] Clerk of the City of . 

[1885, p. 207. Approved and in force April 13, 1885.] 

Sec. 3165^, Payment, how enforced on unplatted lands, i. In 

all contracts heretofore made or which may be hereafter made by 
order and under the direction of the common council of any city in 
this State, for the grading, paving, guttering, and improvement of 
any street or alley in such city, the cost of such improvements shall 
be estimated according to the whole length of the street or alley, 
or the part thereof to be improved per running foot ; and the city 
shall be liable to the contractor for so much thereof only as is 
occupied by public grounds of the city bordering thereon, and the 
crossings of streets and alleys ; and the owners of lots bordering 
on such street or alley or the part thereof to be improved, shall be 
liable to the contractor for their proportion of the cost, in the ratio 
of the front lines of lots owned by them to the whole improved 
line; and in all cases where such improvement shall have been 
made, or may hereafter be made on any street or alley running 
along or through any unplatted lands lying within the corporate 
Hmits of such city, the cost of such improvements shall be esti- 
mated according to the whole length of the street or alley, or the 
part thereof to be improved per running foot, and the owners of 
such unplatted lands bordering on such street or alley or the part 



§3165^] CITIES. [232 

thereof to be improved shall be liable to the contractor for their 
proportion of the cost, in the ratio of the front lines of such un- 
platted lands owned by them to the whole improved line ; and in 
making the assessment against such owners for the improvement, 
such unplatted lands shall be assessed across the ground fronting 
or immediately abutting on such improvement backto the distance 
of one hundred and fifty feet from such front line, and the con- 
tractor shall have a lien thereon for the value of such improve- 
ment: Provided, however, That where such land is subdivided, the 
land lying immediately upon and adjacent to the line of the im- 
provement shall be primarily liable to and for the whole cost of the 
improvement, and should that prove insufficient to pay such cost, 
then the second parcel and other parcels in their order to the rear 
parcel of said one hundred and fifty feet shall be liable in their 
order ; and if the owners of such unplatted lands fail to pay for 
such improvements within sixty days after the completion of the 
same, such contractor may enforce his said lien in the circuit court of 
the county where such city is situated, and the court shall ascer- 
tain the value of such improvements according to the contract price 
therefor and render a judgment for the amount thereof against the 
owner of such lands, and direct that such lands, or so much as may 
be necessary, be sold by the sheriff upon an order of sale issued 
upon such judgment, without relief from valuation or appraisement 
laws, and the sheriff" shall issue to the purchaser a certificate of sale 
therefor, which shall entitle the holder thereof, his heirs or assigns, 
to a deed therefor within one year from the date of such sale : 
Provided, That the owner of such lands may redeem from any such 
sale under the provisions of the law now in force concerning the 
redemption of lands sold upon execution and foreclosure of mort- 
gages. [Acts 1885, p. 207; El. Suppl. § 753.] 

1. This section repealed §3163, with the exception of the proviso ; and modi- 
fied § 3165, so far as it authorizes tlie collection of an assessment upon unplatted 
land, 114 Ind. 246, 

2. This section does not enlarge the hen of a contractor where the work 
was completed and a sale had prior to its passage, 118 Ind. 2S9. 

3. Since ample opportunity is afforded for questioning the validity of the 
proceedings for the improvement and all matters respecting the legality of the 
amount assessed, in the enforcement of a lien in the circuit court, it would seem 
that the improvement of a street without notice, or any provisions for notice, 
will be upheld, 118 Ind. 261 ; 114 Ind. 429; 121 Ind. 534. 

4. The power to make assessments is strictly construed, 118 Ind. 289. But 
now see 124 Ind. 292. 

5. The proceeding to collect an assessment on unplatted lands is analogoics 
to the proceeding to enforce a drainage assessment where the proceedings for 
a drain are instituted in the circuit court. Cases upon questions in enforcing 
such collections may, therefore, be cited. 

6. The proceeding must be instituted in the county where the land lies, 
regardless of the residence of the owmer, 106 Ind. 157. The estimate of the city 
engineer must be made an exhibit, os it is the basis of the action, S3 Ind. 520 ; 
106 Ind. 228; 97 Ind. 389, 399; 98 Ind. 58, 599; or the complaint will be had on a 
demurrer for want of facts, 97 Ind. 389; 100 Ind. 487; loi Ind. 321. It should be 
averred that the estimate was adopted and confirmed by the council and made 



233] IMPROVEMENT OF STREETS. [§ ^iS^a 

the assessment, 98 Ind.5S; but a copy of the resolution cvnfirm{ng\i is not neces- 
sary, 95 Ind. 307. The resolutioji ordering the xvork need not be made a part of the 
comphiint ; and if it appears that it was passed by the requisite vote, it can not be 
attacked. 99 Ind. 113. Of course it need not be averred that the defendant was a 
farty to the original proceedings; for it is not necessary that he should be in 
order to fasten a lien on his land; but it should be averred that a resolution was 
duly adopted. See 104 Ind. 516; 97 Ind. 23. A demand should be averred, 103 
Ind. 250; 89 Ind.36S; 109 Ind. 236. From the making of the contract to the last 
act necessary to fasten liability on the defendant a substantial compliance there- 
Avith must be shown, 97 Ind. 23, 160; 121 Ind. 534. Thus, if it shows a resolution 
adopted by the requisite vote, the letting of the contract, at least a part performance, 
an estimate confirmed by the council, notice and demand of payment, it will be suf- 
ficient, 106 Ind. 228, 471 ; 109 Ind. 217; 89 Ind. 413; 108 Ind. 155 ; no Ind. 523. 
A complaint in <7jr.?7/w/.<r/y is not sufficient, unless it is averred that the defendant 
requested the plaintiff to perform the Mork, 82 Ind. 490; 87 Ind. 244; 89 Ind. 208. 
Whatever question could be raised on appeal ivoxn the assessment must be raised 
in that way; and it can not be raised in a proceeding to foreclose a lien, so long 
as it may be a collateral attack of the proceedings. See 105 Ind. 37; 88 Ind. 70. 
Thus it cannot be shown that th.eorig-i7ial petitio7i^or\m^rov&xnents,\wiis, defect- 
ive, 100 Ind. 487. Damages cavxsed by a negligent performance of the work 
caji not be set up by way of counter-claims or set-off, 109 Ind. 217; nor can the 
misconduct of the city civil engineer be set up as a defense, 113 Ind. 532. A 
default does not admit the amount due; but only the material and traversable 
averments of the complaint, and that something is due, leaving the amount to 
be established by proof, loi Ind. 355. The sale can not be attacked because of 
any alleged irregularity or alleged invalidity in the petition, resolution, estimate, 
or of any of the proceedings prior to the rendition of the judgment, — the judg- 
ment being conclusive upon all these points, (at least such is the rule in drain- 
age proceedings,) 88 Ind. 142. The authority of the sheriff to sell the property 
upon which the lien is foreclosed, is a certified copy of the decree. 

7. Where land abutting upon an improvement is not subdivided into lots, 
the council at the time of making the assessment should fix the frontage to the 
usual depth of lots in the neighborhood, 31 O.S.371; 35O.S.620; /C/.435. If 
it does not, the collection of such assessment will be enjoined, without prejvidice 
to the collection of the amount properlj^ chargeable to the frontage, 34 O. S.482, 
and the owner may be relieved by special act of the legislature, 35 O. S.435. If 
a piece of land is severed by an improvement, each part should be separately 
assessed, although the whole remains on the duplicate as one lot, 35 O.S.469; 
43 O.S.C9; 29 O.S.320. A paper plat may be obliterated, and the frontage of 
lots changed by permanent improvements, 16 Bull. 249. A plat approved after 
assessm.ent is made can not be considered as fixing the depth of lots on an im- 
provement, 2 Bull. 337. A statute passed between the making of the contract 
for an improvement and the assessment, which changes the per centum limita- 
tion, is invalid, so far as it interferes with the contract obligations of the corpo- 
ration with its contractor, 27 O. S.427; 2 C. S. C. R. 150. The law in force at the 
time the ordinance to improve is passed, governs the manner of assessment and 
the rights and liabilities of abutting owners, 46 O.S.296; 3 O. C, C. 493. 



Complaint. 

A B vs. C D . No. . 

A. B. complains of C. D. and says that on the day of ■ 

18 — , the common council of the city of , State of Indiana, by a two- 
thirds vote of all its members [or, upon petition in writing presented to it 
signed by the owners of two-thirds of the whole line of lots and tracts of land 
bordering on the proposed improvement, by a vote of a maioritv of all its 
members] adopted a resolution ordering that Ohio street, from Tennessee street 
to New Jersey street, be graded and graveled with the best quality of raked, 
river or creek gravel to a depth of ten inches in the center and sloping gradually 
to a depth of four inches at each side, at the expense of the lots and tracts of 
land abutting thereon, the contract therefor beiner let to the lowest and best 



3 1 66] 



CITIES. 



[234 



bidder, after two weeks' notice thereof in the Daily Argns ; that in pursuance 
of said order said notice was duly given bj the clerk of said citj as directed in 
said order, and the contract for the construction of said improvement was 
awarded to this plaintiff by said council, he being the lowest bidder therefor, 
and acontract entered into between him and said c\\.y\ that in pursuance of said 
contract this plaintiff has improved said Ohio street between the said two streets 
named, in all respects complying with the resolution of improvement adopted 
by said council as aforesaid, and in all respects complying with his said con- 
tract ; that the civil engineer of said city has estimated the cost of said 
improvement according to the whole length thereof per running foot, and on 

the day of- » 18 • — , reported the same to said council, a copy of 

which is filed herewith marked "Exhibit A," and made a part hereof; that on 
the day of ,18 — , said council, at a regular meeting thereof, ap- 
proved and adopted said estimate, ordered that it be an assessment against the 
property abutting upon said improvement, and in all things accepted the Avork 
as performed by the plaintiff as a complete compliance with said resolution of 
improvement and as a complete compliance with said contract ; that among 
other lots and tracts of land so assessed for said improvment and abutting there- 
on, was the following described unplatted tract, owned by said defendant, 

situate in the county of , and State of Indiana, viz.: [Describe the tract by 

metes and hoti7ids as described in the assessment. '\ That said del^endant, "al- 
though so requested by the plaintiff, has failed to pay him the amount of said 
assessment although more than sixty days has elapsed since said assessment 
was made and since said improvement was completed. 

Wherefore the plaintiff demands judgment for dollars, the forclosure 

of the lien upon said tract of land ; and prays for all other proper relief. 

E F , 



Attorney for the Plaintiff. 



ARTICLE ^—OPENING AND VACATION OF STREETS. 



SEC. 
3166. 
3167. 
3168. 
3169. 
3170. 
3171- 
3172- 
3173- 
3174- 
3175. 
3176. 

3177. 
3178. 
3179- 

31S0. 



City commissioners. 3181. 

Proceeding-sin council. 3182. 

Duty of commissioners. 31S3. 

Hearing and proceeding's. 3184. 

Assessment of damages and benefits. 3185. 

Report. 31S6. 

Report. 31S7. 

Reports as to infants and insane. 3188. 

Action of council on report. 31S9. 

Duty of clerk — Lien. 3190. 

Payment of damages. 3191- 

Collection of assessments. 3192. 

Report of collections, 3i93- 

Private corporations. 3194- 
Appeal. 



No injunction. 

Pa3'ment of damages. 

Tendering- damages — Injunction. 

Vacation of streets, etc. 

Proceedings of commissione-s. 

Report. 

Action on report. 

Clerk's duty. 

Reference of report and proceedings. 

Change of street on petition of abutters. 

Removal of obstructions, etc. 

Plats. 

Pending proceedings. 

Compensation and damages. 



[1875 S., p. 17. Approved and in force March 17, 1S75.] 

Sec. 3166. City commissioners, i. There shall be appointed, 
once in each year, by the circuit court in the county wherein is sit- 
uated any city of this State incorporated under the general act for 
the incorporation of cities, five freeholders, residents of said city, 
who shall constitute a body to be called city commissioners, and 
whose duty it shall be to hear and determine all matters appertain- 
ing to the acquisition, opening, laying out, altering, and straighten- 
ing of streets, alleys, and highways within said city, and also to 
hear and determine all matters appertaining to the "altering or 
straightening of streams within said city, and the taking of lands 
for sewerage purposes. Such commissioners shall serve for one 



235] ' OPENING STREETS. [§3l66 

year and until their successors are elected and qualified ; and, before- 
entering upon the duties of their appointment, shall take an oath 
to faithfully and impartially discharge their duties as commissioners ; 
which oath shall be indorsed upon their certificate of appointment. 
The city clerk shall, within three days after such appointment, issue 
to each commissioner a certificate of his appointment. 

NECESSARY STEPS TO OPEN STREET. 

The following are the steps in their order necessary to be taken: 

1. Commissioners. The circuit court appoints five freeholders, residents of 
the city as city commissioners, § 3166. 

2. Reference to committee. All proposals for opening a street must be re- 
ferred to a standing committee, or to one appointed by the council or selected 
by the mayor, to report at the next meeting, upon the expediency of opening 
the street as proposed, and of referring it to the city commissioners, § 3167. 

3. Submission to city commissioners. A two-thirds vote, by "yea "and 
" nay " is essential to the submission of the matter to the city commissioners, 
§ 3167. 

4. Interested commissioners. If three of the commissioners are interested 
in the opening of the street, the council appoints three commissioners ^rc/ew- 
fore, §3167. 

5. Notice to commissioners. The city clerk sets a time and place for meet- 
ing of the commissioners in a notice issued by him, and served by the marshal 
fifteen days prior to the day set, § 3168. 

6. Meeting and report of commissio7iers. They meet at the time and 
place designated, examine the property to be appropriated and to be benefited, 
and within ten days after making the examination, file with the clerk a report 
showing the property to be taken, the property damaged, and that benefited, 
with the owners' names if known, § 3168. 

7. Notic-e of assessment of benefits and damages. At the time of filing 
their report, the commissioners file with it a notice when and where they will 
meet to assess the benefits and damages. The meeting is held not less than 50 

, nor more than 60 days from the time of filing the report and notice. The clerk 
then issues a written or printed notice to the land-owners named in the report, 
which the marshal serves at least ten days before the meeting. If the owner is 
unknown, can not be found, or is a non-resident of the county, three consecutive 
weeks' notice is given by the clerk, in a newspaper of the city, the last publica- 
tion being 15 days prior to the date of the meeting, § 3168. 

8. Waiver of notice. An appearance by an interested person before the 
commissioners is a waiver of all right to demand a notice. 

9. Hearing and proceedings. At least a majority of the commissioners 
must meet at the time and place designated, view the ground, here evidence; 
and for the latter purpose may compel the attendance of witnesses by svibpoena 
and fine, and administer oaths to them. They may require the services of the 
city civil engineer, § 3169. 

10. Assessment. They assess all lands benefited and damaged, determining 
what part of the expense the city shall pay, § 3170. 

11. Report. Within ten days after the investigation is finished, they must 
file a report with the city clerk, showing (i) the property to be appropriated 
and the owner's name if known ; (2) the damages, where no part of the prop- 
erty is taken; (3) the property benefited, the amount of benefits, and the owner's 
name; (4) the general character and direction of the proposed improvement 
or change, as to length, direction and width; and (5) the amount the city must 
pay. 

12. Reports as to infants and insafie. As to these all notices are served on 
their guardians; if they have none, the commissioners so report to the circuit 
court, have a guardian appointed, and then proceed with the necessary steps, 
§3173- 



3166] 



CITIES. [236 



13. Failure to notify. If there should be a failure to notify an interested 
person, the failure only affects such person, and if he apply to the clerk, upon 
the latter's notice to them, they meet and assess his damages or benefits as the 
case requires, or affirm those already assessed, § 3173. 

14. Resolution of apfropriation. Within 28 days after filing the report the 
council must act upon it if they desire to make the appropriation; if they do not 
so desire, they may let the matter lapse by non-action thereon. The resolution 
must require the clerk to deliver a copy of that part of the report covering the 
assessment of benefits to the city treasurer, § 3174. 

15. Referring hack the report. During the 28 days immediately following 
the date of filing the report, the council may refer the report (or any report) back 
to the commissioners, § 3174, designating the time and place of meeting, with 
suggestions, and they shall meet and consider the whole matter. All persons 
interested must take notice of this meeting. Within 10 days after the examina- 
tion is concluded they must make a second report, and the council must either 
approve or disapprove it within 28 days after it is filed with the clerk, 6 31S9. 

16. Record of report. After delivering a copy to the treasurer, the clerk 
copies it at length into the council records, and preserves the original, § 3175. 

17. Payment of damages. The council may at once pay all the damages, 
or delav the proceedings not to exceed a year until they are collected, § 3176. 
The treasurer pays the damages; and if^ two or more persons claim them, he 
notifies the city attorney to give the monev to him, and the latter brings a suit 
to determine who is to get it, § 3182. If the owner can not be found, the treas- 
urer keeps it as a special deposit, § 3183. 

. 18. Notice of collection. Within 10 days after receipt of a copy of the as- 
sessment, the treasurer must notify those assessed with benefits, either in person 
or by a written notice left at their residence, or by publication if they are non- 
residents of the city or unknown, § 3177. 

19. Collection of assessments. If an assessment is not paid within 3 months 
after service of notice, or 15 days after the last publication, the treasurer pro- 
ceeds to collect the money due, the same as if he were collecting an assessment 
for the improvement of a street, but without a precept, 6 3177. If the land is 
platted, he advertises and sells it, § 3165; if unplatted, by proceeding in the 
circuit court, § 3165a. 

20. Certificate of purchase and deed. The certificate of purchase and deed 
is issued the same as if the assessment were for the improvement of the street, 
§ 3165 and § 3165a. 

21. Report of collections. The treasurer must report a collection made to 
the council at their regular meeting next after its receipt, § 3178. 

22. Collections from private corporations. See procedure, § 3179. 

23. Appeal. Any one aggrieved may appeal, within 30 days after the com- 
missioners' report is approved, to the circuit court, by filing a bond; where- 
upon the city clerk files a transcript of all the proceedings in the circuit court, 
§ 3180. 

24. Title to land appropriated. The city gets a valid title (an easement) 
to the land appropriated, for the purposes of a street, free from all judgment 
or general liens, but not from mortgages. 

25. Pay of commissioners and clerk. The commissioners should attach an 
item of the number of days they and their clerk were employed, and the coun- 
cil allows and pays the claim out of the city treasury. These costs are no part 
of the cost of opening the street. 

26. Maps or plat. The city civil engineer prepares a plat of the new street 
and files it with the county recorder, § 3192. 

27. This law is amendatory and supplementary to the general law concern- 
ing cities, 82 Ind. 178. Constitutional, i Ind.48. 

28. It is no cause for an injunction that the oaths were not endorsed by the 
commissioners, or even if none Avere administered, 78 Ind. 233. 



237] OPENING STREETS. [§ 3167 

29. The ^rcstimption is that a street has been legallj' laid out and opened, and 
that property owners damaged have had their damages adjusted and paid, 79 
Ind. 446. 

30. In the matter of local improvements jurisdiction is conferred on munic- 
ipal corporations over the whole subject thereof, and the common councils of 
those corporations are invested with exclusive original jurisdiction. So one seek- 
ingto avoid an assessment for street improvement by collateral attack must show 
that the street was not acquired by condemnation, purchase, dedication, or pre- 
scription, 120 Ind. 520. 

Order-Book Entry for Appointment. 

On its own motion the court appointed A. B., C. D., E. F., G. H., and 

I. J. city commissioners for the city of , Indiana, for the year beginning 

on the day of , 18 — . 

\^Ccrtified copv should he given to cit\ clerk. ^ 



Certificate of Appointment. 

I, X. Y., clerk of the circuit court, hereby certify that A. B. 

was, on the day of , 18 — , appointed by said court, city commis- 
sioner of the city of , Indiana, for the year beginning on the day 

of ,18 — , as appears of record entered in order book , on page . 

In testimony whereof, I have hereunto set my hand and the seal of said court 
this dav of , 18 — . 

[Seal.] " X. Y.. 

Clerk. 

[A certificate should be given to each commissioner, for which the clerk is 
entitled to no fees.] 

Oath. 



State of Indiana., County of , .?.?. 

I, A. B., do solemnly swear that I will faithfully discharge my duty as 

city commissioner of the city of , of the State of Indiana. So help me 

God. 

A. B. 

Subscribed and svvorn to before me this day of , 18 — . 

[Notarial Seal] "' L. X., 

Notary Public. 

Sec. 3167. Proceeding's in council. 26. Before any matter of 
the opening, laying out, or altering of any street, alley, highway, 
or water-course, or of the vacation thereof, shall be referred to the 
city commissioners, the common council shall refer the matter to 
an appropriate committee, who shall examine the matter, and re- 
port at the next meeting of the common council upon the expedi- 
ency of so referring; and if the common council shall determine, 
by a two-thirds vote, to submit the said matter to the commission- 
ers, it shall be so ordered, and shall thereupon be referred to said 
commissioners, as hereinbefore provided ; but no such matter shall 
be submitted unless so ordered by a two-thirds vote of such com- 
mon council. In case any commissioner shall be interested, he 
shall be incompetent; and in case a number are interested, so 
great as not to leave a majority competent, the council may ap- 



§ 3167] CITIES. [238 

point, at any regular meeting, commissioners pro tempore. Any 
person interested in such proceedings, or whose property is affected, 
may present his objections, and if the commissioners be found in- 
terested, commissioners /7'6> tempore shall be appointed. 

1 . A commissioner interceded ra. property to be assessed either with benefits 
or damages is incompetent to serve ; so is one who is a father-in-law to a prop- 
erty owner affected hy such proposed street. 99 Ind. 417. Section 240 oT R. 
S., 1S81, controls with reference to the question of kinship. 99 Ind. 417. 

2. A property owner is not called upon to object to a commissioner serving 
until after the first report is filed ; but, if served with notice, he must raise such 
objection before the assessment is made at the second meeting, and if he does 
not do so, he can not raise it in the circuit court on appeal ; but if he has had no 
notice of the second meeting, the clear inference is that he may appeal, if he so 
desires, and raise the question of the competency of the objectionable commis- 
sioner by a sworn plea, § 3180 ; 99 Ind. p. 422. So if the objection is overruled 
or disregarded and not reported to the council, or if the council disregarded it, 
it may be renewed and tried on appeal ; or if a party had no knowledge of the 
incompetency of a commissioner, before the assessment made, or has no oppor- 
tunity to make it, he may raise it on appeal, 99 Ind. p. 422. Notice of an ad- 
jojirned mcetitig need not be given, 78 Ind. 233 ; 6 Pick. 470 ; 12 Kas. 17. 

3. In all things there must be a substantial compliance with the statute, in 
order to divest the land-owner of his title, 38 Ind. 223; 11 O. S. 219; 34 Mich. 
36; 23 W. Va. 203; 16 La. Ann. 393; 33 N. J. L. 72; 78 Mo. 41 ; 10 Gray, 40. 

4. If it IS a proposition to open a new street entirely, its location must be spe- 
cifically defi^ied in the resolution, but if it is to vacate and change a street it is 
not necessary that tlie street be described by course and distance, or state "of 
what it consists," or " from or whence taken." It is enough if the location and 
extent of the proposed change be well stated, 82 Ind. 178. 

5. A city can not open or -widen a street Witltout referring the matter to the 
city commissioners, to have the damages assessed in the manner prescribed by 
law; and if it does undertake it, without such reference, it will be liable to any 
person injured for the damages which were assessable by the commissioners, 
120 Ind. 254. 

6. T\\Q particular pzirpose for which the power oi eminent domain shall be 
exercised rests entirely with the legislature, 4 O. S, 308; 98 U. S. 403; 116 111. 
449; 58 Mo. 175. The power having been granted, the grantee is vested with 
the determination whether it shall be exercised, and when, and to what extent, 
within the power. 22 Minn, 372; 116 111. 449. Only on proof of fraud, or bad 
faith, or that the property is intended to be vised for purposes other than that 
for which it is appropriated, will warrant the interference of the courts, 19 O. 
S. 308; 4 O. S. 299. Under the principle of strict construction, where the estate 
taken in is not defined, only such an interest can vest under the proceedings as 
are necessary to accomplish the purpose of the appropriation, 68 N. Y. i, 591 ; 
10 Kas. 603 •, 125 Mass. 226. 

7. A city may appropriate the necessary easement for a slope for a fill, but 
the owner is not entitled to compensation as for the fee, 34 O. S. 267. Street 
or highway is a public use. although wholly to aff"ord access to church or ceme- 
tery, 33 Ind. 8o; 63 Pa. St. 471; and may accommodate but one family, 22 Vt. 
44; 15 Ark. 43 ; 5 Graft. 265; 61 la, 89; 64 Id. 198; and may be merely a cul 
de sac, 12 Kas. 17; 56 Wis. 429; 87 111. 189; 3 Keys, 35; and may be merely to 
accommodate pleasure-seekers; 11 Allen, 530; 35 N. H. 134. 

8. The following uses of streets are held to be legitimate and not to require 
^ddiiioml com'pens^iion; for sezvers and drams, 21 O. S. 499; 2 C. S. C. R. 
462; 30 Mich. 24; 13 Allen, 146; 28 Conn. 362 ; /(^r -uater-pipes, 29 Hun. 245; 
27 Id. 72; for gas-pipes, 90 N. Y. at p. 161; 32 Vt. 367; for laying subter- 
ranean tvires and setting poles and stringing %vires for lighting bx electricity, 
65 How. Pr. 407; 18 Jones & S. 464; 51 lb. 280; contra, 9 Bull. 6'^; for street 
railivays, 14 O. S. 524; 35 Cal. 325; 125 Mass. 515; for setting poles for elec- 
tric street raihvays, 3 O. C. C. 425 \ for cisterns for spri7ikling streets and ex- 
tinguishing fires, 32 Vt. 367 \ for statuary and monuments, 2 Hun. 146. 



239] OPENING STREETS. [§3167 

9. The following are held to require compensation :/'6)r iclcgrapli and tele- 
phone lijies, 2 O. C. C. 259; 42 N.J. Eq. 141 ; 107 111. 507; 11 Abb. N. C. 440; 
contra, 136 Mass. 75; 88 Mo. 258; for public markets, 15 Fla. 306; 34 N. J. L. 
201; ^ Porter (Ala.) 279; for ■public pounds for strays or for jail, 15 Fla. 306; 
63 X. H. 6o5;/b/' railroads 40 O. S. 496 ; 38 O. S. 41 ; 3 O. S. 330. 

10. Markets. Property taken for, is for public use, 28 Hun. 515. But a 
street can not be used for, without compensation, 34 N. J. L. 201; illegal erec- 
tion of, may be Qnjoined, 29 Alb. L. J. 201 ; 6 Bull. 142. 

11. Under general authority to lay out streets, a municipality may extend 
them across the right of way of a railroad, 23 O. S. 510; 49 Mo. 480; but taken 
for an inconsistent use can only be justified under a grant in express words, or 
by necessary implication, 23 O. S.510; 23 Pick. 360. General authority will 
not authorize taking the right of way of a railroad longitudinally, 123 Ind. 467 ; 
68 Ind. 167 ; z.^ Ind. 574; 103 Ind. 4S6; 26 N. E. Rep. 188; 36 Conn. 255 ; 39 N. 
J. L. 28; nor of laying the highway through depot grounds, 23 Minn. 167; 30 
^^•359; 91 ^"' Y. 552; or shops, 53 Ga. 120. 

Resolution. 

Be it ordained by the common council of the city of , that it is 

desirable to open a street from to , within this city; and that the 

matter thereof [or, in case of a petition, that the matter of opening a street 

from to ] be referred to the committee on [or, to a committee 

of three to be appointed by the mayor] to examine and report at the next meet- 
ing of this council upon the expediency of referring the proposed opening of 
such street to the city commissioners. 

Report of Committee. 

To tlie Cojnmo7i Council of the City of ; 

Your committee, to whom was referred the matter of opening a street 

from to , Avithin this city, with a view of examining and reporting 

upon the expediency of refering the same to the city commissioners of this city, 
report that in their opinion it is [not] expedient and desirable that the matter 
of opening such proposed street be referred to said city commissioners. 

[Signed] 



Resolution of Reference. 

Be it ordained by the common council of the city of , that, in 

pursuance of the recommendation of the committee of—- -, duly selected to 

examine and report upon the same, on the — day of , 18 — , the matter 

of opening a street from to , within this city, be and the same is 

hereby referred to the city commissiouGB-s of this city; and that such commis- 
sioners be requested to meet on the ■ day of , iS — , at 10 a. m. for 

the purpose of examining the same. 

Second Form of Resolution. 

Resolved, by the common council of the city of , that the peti- 
tion of — and others, praying for the opening and extension of , as 

prayed for in said petition, be referred to the board of city commissioners, with 
instructions to assess benefits and damages, and to make due report to the com- 
mon council; the city commissioners to return all petitions, plats, and notices. 
The city clerk is hereby instructed to issvie the proper notices, and the city 
marshal is hereby directed to serve said notices on said city commissioners and 
upon the property owners. 

Provided, That before the clerk issue the said notices to the said city com- 



§ 3^68] CITIES. [240 

missioners a bond shall be filed with the said city clerk to the approval of the 
major, guaranteeing the payment of all costs and charges of said commission- 
ers in this matter. 

Appointment of Commissioner pro tempore. 

Whereas it is found that A. B., C. D., and E. F., each a citj commis- 
sioner of this city, are so interested in thematter of opening a s!reetfrom— 

to , within this city, that they are incapacitated to serve in said matter; 

therefore 

Resolved, that R. U.,T.S., and W. Z. be and are hereby appointed commis- 
sioners/;-^ tempore to act in said matter, instead of such disqualified persons. 
The clerk is hereby directed to notify them of their appointment. 



Notice of Appointment. 

Office of Citv Clerk. 
To R. U.: 

You are hereby notified that on the dav of , iS — , you 

were appointed city commissioner /ro tempore in the matter of opening a street 

from to , within said citv. 

X. Y., 

Clerk of the City of . 

Oath of Commissioner pro tempore. 

State of Indiajia, County of , .?>?. 

I, R. U., do solemnly swear that I will faithfully and impartially dis- 
charge my duty as city commissioner pro tempore of the city of , of the 

State of Indiana. So help me God. 

R. U. 
Subscribed and sworn to before me, this day of , 18 — . 

[Notarial Seal.] L. X., 

Notary Public. 

Cierk's Notice to City Commissioners. 

ToA.B.: 

You are hereby notified that the common council of the city of 

have referred to the city commissioners of said city the matter of opening a 

street from to , within said city ; and have requested that they 

meet on the day of , iS — , at 10 a. m., for the purpose of examin- 
ing the same. You are, therefore, requested to meet the four other city com- 
missioners at said time in the council chamber of said city. 

L. U., 
City Clerk. 



[Each commissioner is entitled to notice, unless one in his place has been 
appointed /r^ tempore.^ 

[1879 S., p. 96. Approved and in force March 31, 1879.] 

Sec. 3168. Duty of commissioners. . 2. Said commissioners shall 
meet upon the request of the common council ; and it is made the 
duty of the city clerk to notify each of them of such request, and 
to designate therein the time and plate of meeting; which notice 
shall be served by the city marshal at least fifteen days prior to the 
time designated, either by reading or by leaving a copy at the usual 



241] OPENING STREETS. [§3l68 

places of residence of said commissioners. They shall meet at the 
time and place designated, and examine the property sought to be 
appropriated, and shall also view and examine the real estate in the 
vicinity thereof to be benefited or injured by such proposed improve- 
ment. They shall, within ten days after they have concluded such 
examination, file in the office of the city clerk a written report, 
describing the property to be appropriated, and the name of the 
owner, if it be known (and, if unknown, a description of all real 
estate to be damaged thereby, if any there be). In cases when no 
part thereof is taken, and the name of the owner, if it be known 
(and, if unknown, stating the owner's name is unknown), a descrip- 
tion of all real estate beneficially affected by said change or improve- 
ment, stating the owner's name if known (and, if unknown, show- 
ing it to be unknown). And upon the filing of such report with 
such clerk, said commissioners shall also file wiih such clerk a no- 
tice of the time and place when they will meet to estimate the in- 
juries and benefits to the property sought to be appropriated, and 
to estimate the benefits and damages to all real estate injuriously 
or beneficially affected by such change or improvement; which 
meeting shall be held not less than fifty nor more than sixty days 
from the time of the filing such report and notice. And upon the 
filing of such report and notice, the clerk shall issue a written or 
printed notice to the persons whose lands are proposed to be appro- 
priated and to those whose property it is proposed to benefit or 
damage or against whom or in favor of whom any assessment is to 
be made. If such person reside in the county where said city is 
situated, notice shall be served upon him, either by reading or 
leaving a copy thereof at his last and usual place of residence, at 
least ten days before the time designated for such meeting. In 
case the land-owner be unknown, or be not a resident of the county, 
or in case the residence of the land-owner be unknown, then notice 
shall be made by publication, once in each week, in a newspaper 
of general circulation published in said city, for three consecutive 
weeks. The last publication of notice must be at least fifteen days 
prior to the time designated for such meeting. It shall be the 
duty of the marshal to serve such notice, and make due return of 
service of such notice to the city clerk; and the city clerk shall 
obtain proof of publication as provided by law, and preserve such 
proof, as also the notice returned by the marshal. The notice to 
be issued by the clerk shall state, generally, the character of the 
proposed change, alteration, or improvement, but need not describe 
the proposed change or improvement particularly, and need not 
describe the property to be affected ; but if it be sufficient to inform 
the person of the general nature or character of the change, or of 
the general direction and character of the proposed route or line of 
the proposed street, alley, highway, or water-course to be laid out, 
changed, or improved, and the time and place of such meeting, it 
shall be valid and effectual. If an interested person shall appear 
16 



§31^8] CITIES. [242 

before the commissioners, he shall not thereafter be permitted to 
aver either a defect or want of notice. It shall be the duty of the 
marshal to serve all notices and subpoenas issued by the city clerk 
or the commissioners. 

1. In determining what property will be assessed with benefits or damages, 
no notice to the property owners of the meeting of the commissioners is neces- 
sary, 99 Ind. p. 420. An assessment xvithout notice is not void; and no injunc- 
tion can be maintained for the absence of it, 78 Ind. 233. (Under old statute it 
was necessary, 50 Ind. 151.) Notice may be served at residence, 2 Bull. 142. 
In case of death pending proceedings, revivor must be had in name of heirs and 
not of administrator, 29 O. S. 633. Appearance and trial waive technical ob- 
jections which do not go to jurisdiction, 48 Mo. 243; 27 Graft. 910; 4 Ired. L. 
34. As to who are owners, see note to § 2236. Where notice is served on agent, 
proof of agency must be had to confer jurisdiction, 30 Kas. 5S1. Parties who 
have had due notice, are bound to take notice of adjournments; 6 Pick. 470 ; 12 
Kas. 17. Publication for three weeks is satisfied by insertion once each week, 
15 Barb. 255. 

2. This is a proceeding against the ozvncr and not against one holding a 
lien; and the latter is not entitled to notice. Land taken upon which there is a 
judgment lien is discharged from the lien; but such is not the case with refer- 
ence to a mortgage lien, which still remains, 59 Ind. 446 ; 7 Phila. 650; 47 N. Y. 
157; and the mortgagee should be made a party to the proceedings and have 
notice served upon him. But a mortgagee is such an owner as entitles him to 
be made a party, and he may recover of the city the damages awarded, not- 
withstanding the amount has already been paid to the mortgagor, 109 Ind. 411; 
38 Ind. 463. 

3. The description should be so definite that the property maybe identified 
at all stages of the proceedings, the test being that it should be as definite as is 
required for a deed, 49 Mich. 465; 13 O. S. 373; 32 N.J. L. 49; 109 Ind. 488. 
Description by a line will invalidate proceedings, 49 Mich. 465; 40 Mich. 229. 
Purpose should be sufficiently stated to show a public use, and that the power 
is conferred by the statute, 34 O. S. 114; 54 Ala. 288; 5 Hun. 86; 53 Conn. 551. 
" Owners" means all persons having an interest in the land to be taken, 47 N. 
Y. 157; 37 Kas. 480; 14 Neb. 270; 10 Md. 76. Includes owner of ground rent, 
30 Pa. St. 362 ; mortgagees, i O. C, C. 49; 20 Neb. 276; 38 la. 463; tenants for 
life, 13 Pa. St. 497; 3 W. & S. 460; vendors in executory contract, 6 Hun. 553; 
lessees from year to year, or for a term, 107 Pa. St. 166; 25 Pa. St. 229; 10 Md. 
76; II R. I. 258. Heirs should be made parties by name, 34 Ind. 337. Trustee 
should be made party and not the beneficiary, 32 N.J. L. 49; 36 N.J. L. 181 ; 
II Cush. 506; 51 Cal. 138. Inchoate right of dower is extinguished by making 
the husband alone party, 8 N. Y. no; 3 O. 24; see 27 N.J. Eq. 534, Where 
the application alleges that certain persons are owners, the corporation is es- 
stopped to dispute the title alleged, 65 Cal. 241; 37 Kas. 253; 35 Minn. 439. 

4. A purchaser, to whom lots are conveyed by warranty deed while a pro- 
ceeding to condemn a portion thereof for street purposes is pending, is entitled 
to recover from the grantor any damages that may be awarded in the latter's 
name, and paid to him by the city by reason of the condemnation, and the 
grantor will not be permitted to prove by parol that he reserved the damages 
at a date prior to the execution of the deed, 117 Ind. 362. 

5. Turnpike can not be taken for a highway without special legislative 
power, II N. H. 19; 15 Vt. 745; and when it is so taken, the owner of the fee is 
not entitled to compensation, 12 Mete. 455; 104 Pa. St. 583; 50 N. Y. 302. Cor- 
poration must condemn all the portion of a turnpike within its limits, if any, 
2 Bull. 126. Testimony of experts as to the rate at which the net income of a 
turnpike should be capitalized, is competent to show the value of the franchise, 
5 Bull. 77; 18 Bull. 308. 



243] 



OPENING STREETS. 



[§3i68 



First Report of Commissioners. 

To the Common Council of the City of • 

The undersigned city commissioners [and city commissioners /rt? /^;«- 

^ore] of said city of , to whom was referred the matter of opening a street 

from to , within said city, hereby report that they have examined 

the same, and find that it will be necessat-y to appropriate the following prop- 
erty, all situated within said city of , county of , and State of In- 
diana, owned by the persons named, viz.: 





No of 1 . , ,. . 
Lot. 1 Addition. 


Naine of Owner. 









Also a strip of land described as follows, viz. : Beginning at the northwest cor- 
ner of lot 13 of Johnson's addition to said city, running thence north 300 feet, thence 
east 60 feet, thence south 300 feet, and thence west 60 feet, to the place of be- 
ginning, owned by . 

We also report that the following lots and tracts of land, within said city, 
will be damaged by the opening of said street, viz.: 





No of 
L-it. 


Addition. 


N;ime of Owner. 









We further find that the following lots and tracts of land, within said city, 
will be benefited by the opening of said street, viz.: 



No of 1 ,.•,■.• 
Lot. Addition. 


Name of Owner. 









Signed' 



City Commissioners. 



Commissioners' Notice of iVIeeting. 



To Whom it May Concern : 

Notice is hereby given that the city commissioners of the city of , 

State of Indiana, Avill meet at the council chamber of said city at 10 a. m. on the 

day of , 18 — , to estimate the injuries and benefits to the property 

sought to be appropriated, and to estimate the benefits and damages to all real 
estate injuriously or beneficially affected by said change, by the opening of a 

street from to , within said city, which property and real estate is 

described in their report this day filed with the clerk of said city. 
[Signed by all the commissioiicrs and filed zvitk city clerk. \ 

Clerk's Notice. 



Office of City Clerk, 
To the Marshal of the City of , Greeting: 



that 



You are hereby instructed to notify 



commissioners duly appointed by the Judge of 



circuit court Indiana. 



§3169] CITIES. [244 

in accordance with the provisions of act of the general assembly of the State of 
Indiana, entitled "An act in relation to the laying out, opening, widening, 
altering and vacation of streets, alleys and highways, and for straightening or 
altering of water-courses by the cities of this State, and providing for the ap- 
pointment of commissioners to assess benefits and damages, providing their 
duties, and the method of procedure, and providing for the collection of bene- 
fits and payment of damages, and prescribing the duties of city officers in rela- 
tion thereto, and providing remedies m such matters," approved and signed 
March 17, 1875, ^^'^^^ meet in the office of the city clerk, room number four, 

city hall, in the said city of , on , the day of , A. D. 

18 — , at o'clock — m., for the purpose of appraising and assessing the 

damages and benefits (if there be any) accruing to the owner or owners of the 

land or lots through which it is proposed to open a street from to 

within the city of , 

By order of the common council. 

Witness my hand and the seal of the citv of , this davof , 

18—. 



City Clerk. 



Marshal's Return. 



Served by reading to CD., etc.; and by leaving a certified copy thereof 
at the last and usual place of residence of E. F. I. K. not found. 

: i8_ . 



U. Z., 

City Marshal, 



Protest of Land-owner. 



To the City Commissioner's of the City of ; 

The undersigned, a land-owner who will^be affected by the opening of 

a street from to , Avithin said city, respectfully protests against 

A.B., C. D., and E.F. serving as commissioners in the proceedings for the pur- 
pose of opening said street, for the reason that they are owners of land that will 
be liable or ought to be assessed with benefits and damages. 

U. Z. 

[ 1875 S., p. 17. Approved and in force March 17, 1875.] 

Sec. 3169. Hearing and proceedings. 3. Said commissioners, or 
a majority of them, shall meet at the time and place designated, 
and shall proceed to hear and determine all matters concerning the 
laying out of the street, alley, highway, or water-course so men- 
tioned in the notice issued to them. They shall have power to 
administer oaths, to hear evidence, to examine witnesses, and to 
adjourn from time to time. They shall also have power to issue 
subpoenas for witnesses, and require the marshal to serve the same ; 
and shall have power to require the city engineer to render them 
such assistance as they may require. A majority of such commis- 
sioners may act, determine, and make valid and effectual reports; 
and they shall have power to attach and punish, by fine, witnesses 
who fail to appear when properly subpoenaed. 

Subpoena. 

The State of Indiana^to the Marshal of the City of , Greeting: 

You are hereb}' commanded to summon A, B.to appear before the city 
commissioners of the citv of , State of Indiana, at the council chamber 



245] OPENING STREETS. [§ 3 I/O 

thereof, on the day of , iS — , at lo a. m., there to testify in the matter 

of opening a street within said city, which matter is now pending before them. 
And of this writ make dvie return. 

Given under our hands and seals this day of , rS — . 

[Should be signed by at least three commtssio?iers.\ 



Claim for Damages. 



i8 



To the City Commissioners of the City of 



As the owner of lot No. , of subdivision, fronting 



feet on the side of the proposed street, I claim that I will be damaged in 

the sum of dollars, by the proposed improvement of said propos^ed street 

under the resolution therefor, passed by common council of said city on the day 
of , i8— . 



Sec. 3170. Assessment of damages and benefits. 4, It shall be 
their duty to examine the property sought to be appropriated, and 
to estimate its value ; and they shall also view the real estate in 
the vicinity thereof, and estimate both the injuries and benefits 
thereto. In assessing and awarding damages and benefits, they 
shall not be confined to real estate upon or along the line of the 
proposed change or improvement, but shall estimate benefits and 
damages to all real estate injuriously or beneficially affected. They 
shall also consider and determine what part, if any, of the expense 
of such change or improvement ought to be paid out of the gen- 
eral fund of the city. They shaU assess upon each lot of land be- 
longing to the same person the damages alone [done] thereto, and 
shall also assess all benefits which may accrue to real estate in the 
vicinity and which may be beneficially affected ; and shall also 
assess the value of real estate actually appropriated, and the bene- 
fits resulting to the part, if any there be, of any lot or parcel of 
land not taken, as well as to the other real estate benefited but of 
which no part is taken. 

1. Where an established grade is changed, the city commissioners must as- 
sess the damages thereby occasioned. 50 Ind. 151 ; 120 Ind. 254; 113 Ind. 425. 

2. So where the channel of a stream of water flowing through the city is 
changed, they must estimate the value of the land or other property to be ap- 
propriated ; state what part of the expense the city must bear, the real estate 
benefited and the amount, and in all other matters the same as in opening a 
street. 38 Ind. 223. Until assessment of damages, and payment or tender an 
Dijutiction can be maintained, 100 Ind. 206. 

3. Damages can not be assessed for the manner in which the street may 
afterwards be graded or improved; and for such damages the city is not liable 
for a failure to refer the matter to the commissioners; but it is liable for dam- 
ages caused by laying out the street, if it does not refer the matter to the com- 
missioners for assessment. 120 Ind. 254; 56 Ind. 127; 36 Ind. 90. A city may 
take possession of an abandoned tt.'t'// originally dug in a street bv a lot-owner 
without making compensation ibr additional servitude, 26 N. E. Rep 1S4. 



ADDITIONAL NOTE. 



4. Measure of compensation . The owner is entitled to receive (i) the \-ahie 
of the land actually taken ; (2)the amount ot damage or loss in value to the resi- 
due, if any, which may be occasioned either {a) by the severance therefrom of 
the part taken, or {b)\)y the use for which the appropriation is made, j O. S.56S. 



§3170] CITIES. [246 

5. The value of the land taken is its fair market value at the time it is taken, 
irrespective of the causes which have contributed thereto, and for all pur- 
poses for which it may be useful, 4 O. S. 208; 5 O. S. 568; 17 Wend. 650; 19 
Wend. 678; 98 U. S. 473. From this amount no deduction can be made for 
benefits of any kind, Const. 1851, Art. i, §19. 

6. The amount of damage or loss in value to the residue involves the ques- 
tion, Avhether the residue is as valuable after the part taken is severed from it 
for the use for which it is taken as i* was before. 30 O. S. 108. Here arises the 
matter of benefits. They are distinguished as general and special, 6. O. S. 182. 
General benefits which arise, and are shared in equally by all the property 
affected by an appropriation, can not be taken into account, but those special, 
incidental benefits which accrue to the owner whose property is taken, and 
which are not shared in by the property generally aft'ected by the appropria- 
tion, may properly be considered in estimating the loss in value to the residue, 
5 O. S. 568 ; 6 O. S. 182 ; 30 O. S. 108 ; 21 Kas. 247 ; 3 Neb. 237 ; 11 Neb. 585. 
Effect upon the residue depends largely upon what is to be considered an entire 
tract before any part is taken. Mode of user and improvement is usually con- 
trolling. For what constitutes a city or village lot, see 3 Bull. 965 ; 50 Mich. 
506 ; 21 Minn. 122 ; 35 Minn. 439 ; 27 Kas. 382 ; 63 la. 397 ; 34 la. 353 ; 27 Wis. 
108 ; 6 Hun. 149. For what constitutes one tract of farm land, see 19 Minn. 500 ; 
15 Minn. 230; 70 Mo. 629; 25 Kas. 421; 61 la. 716. For benefits held to be 
special, see 98 Mass. 312 ; 125 Mass. 557 ; 17 Mass. 363 ; 27 Kas. 391 ; 99 Pa. St. 
152. For particular benefits held not to be special, see 13 Minn. 508; 59 Wis. 
364; 133 Mass. 253. 

7. Measure iit j)a"ticular cases. A life tenant is, in the absence of statute, 
entitled to the use of the entire compensation, instead of estimated value of his 
life interest, 86 Mo, 473, i Pa. St. 132. As between the lessor and lessee, the 
lessee is entitled to such compensation as will make him whole in respect to his 
interest, 66 Pa. St. 425. Covenants which add value {renewal)^ 19 Wend. 678; 
26 Pa. St. 238; as well as conditions which diminish value may be shown, 137 
Mass. 319; L. R. 5 Eq. Cas. 227. If both parties are before the court, the cov- 
enant to pay rent may be extinguished and proper compensation awarded each, 
II O. 408; and when covenant is extinguished, the tenant should receive value 
of the term, subject to rent, 66 Pa. St. 425. If machinery or other fixtures have 
to-be removed, tenant is entitled to the difference in their value on the property 
appropriated, and at some other place, applied to the same or some other use, 
and the expense of removal, 105 Pa. St. 547 ; 113 Pa. St. 214; {bar fixtures) 20 
Bull. 8. For cases where small portion of building is taken, see 20 Pick. 159; 
23 Pick. 425. 

8. Where property can only be used for specific purposes, this fact may be 
considered in determining amount of compensation {for dvjelling house only), 
137 Mass. 319; (/rtr/^) 45 N. Y. 729; {meeting house) 7 Gray, 106; {cemetery) 
II Wend. 149; {grave-yard) 6 Q^ B. 37. If property is taken for a street which 
is subject to a public easement by dedication or prescription, owner is entitled 
to nominal damages only, 73 N. Y. 179 ; 15 Phila. 381 ; 22 Pick. 75 ; 73 Me. 357. 
But if subject to a private easement only, compensation subject to easement 
should be awarded, 47 N. H. 228; 4 Gray, 537; 2 Gray, 271. Where property 
already subject to one public use by appropriation is taken for another, owner 
is entitled to compensation for additional burden and inconvenience occasioned 
bv change of use, 18 O. S. 92. If perpetual easement is taken, which is in its 
nature exclusive, it amounts practically to a fee, and owner is entitled to full 
value of land, 22 Minn. 286; 63 la. 397; but where easement for slope of fill is 
compensated for, it should not be as for a fee, 34 O. S. 276. 

9. No damages can be allowed for attorney's fees, or costs in the proceed- 
ings, 6 Phila. 81 ; 9 Wend. 244. 

10. Evidence. A witness properly qualified may testify (i) what his opinion 
is as to. the value of the property actually taken, and (2) what his opinion is as 
to the value of the residue, before and after the part taken is severed from it for 
the uses of the appropriation, excluding from the first all benefits from the ap- 
propriation, and from the second all general benefits. But he may not state 
what his opinion is as to the amount of damage to the residue, 4 O. S. 583 ; 5 
O- S. 575 ; 45 O. S. 309 ; 21 Kas. 575. But see i O. C. C. 130. It is not compe- 



247] OPENING STREETS. [§3I7I 

tent for the owner to show what he has been offered for his property, 64 Miss. 
399 ; 57 Wis, 332 ; 8 Kas. 419 ; 35 Cal. 247 ; nor what has been offered for simi- 
lar property, 11 Cnsh. 506; 19 Minn. 464; nor what the owners of similar prop- 
erty have offered to take for it, iii Mass. 543 ; 36 N. J. L. 557. But it is com- 
petent to show what he has said as to the value of his property, as an admission, 
37 Kas. 162 ; and what he has offered to sell it for, 78 Pa. St. 454. And it is 
competent to show what the owner paid for his property, and he may, there- 
upon, show the circumstances of his purchase, 100 Mass. 350; 42 Ark. 265. 
Rental of premises may be shown as tending to indicate value, 20 Bull. 8. 
"View" of premises should be considered as part of the evidence, 19 Bull. 258; 
123 111. iSS. Value for taxation is not competent, 5 Gray, 35 ; 44 Ark. 258. 

II. The measure of damages for appropriating way across railroad is com- 
pensation for land taken, subject to the right to use the same for railroad pur- 
poses, and such further sum as will compensate for making and maintaining the 
crossing with suitable cattle-guards, fencing, signs, planking, etc., 61 Mich. 507; 
14 Gray, 155; 58 Mich. 641 ; i Allen, 324. But the railroad is not entitled to 
recover for possible expense by way of accidents, 79 Me. 386 ; 14 Gray, 155 ; nor 
for expense of ringing bell at crossing, 78 Me. 61. If railroad occupies street 
on condition that the municipality shall not be required to appropriate in 
order to cross it with other streets, it will be estopped to claim compensation, 
3 O. C. C. 455. 

Sec. 3171. Report. 5. The said commissioners shall, within ten 
days after they have concluded their investigation, file in the 
office of the city clerk a written report, wherein they shall report 
upon the following matters, to wit : 

First. The value of the property to be appropriated, describing 
it, and the name of the owner, if it be know^n (and, if unknown, 
stating that the owner's name is unknown). 

Second. The damages to property, if any there be, in cases 
where no part thereof is taken. 

Third. The benefits to real estate beneficially affected by said 
change or improvement, describing the real estate, stating the 
owner's name, if known (and, if unknown, showing it to be un- 
known). 

Fourth. The general character and direction of the proposed 
improvment or change, as to length, direction, and width. 

FiftJi. The amount, if any, to be paid by the city. 

The report must be certain and definite in respect to names of owners and 
value and description of property taken as well as of that upon which damages 
or benefits are assessed. But describing a parcel of land as the "remainder" 
of a lot from which a specific part has been taken is a good description, 82 Ind. 
178. 

Second Report of City Commissioners. 

To the Common Council of the City of ; 

The undersigned, city commissioners of the city of , State of 

Indiana, respectfully report in the matter of opening a street from to 

, within said city, that on the day of , 18 — , at 10 a. m., they 

met, pursuant to your request and the notice of the clerk of said city, and entered 
upon the consideration of the matter of opening said proposed street; that they 
examined the property proposed to be taken for svich street, also the contiguous 
property and property in the neighborhood, with a view of ascertaining ^\ hat 
property would be benefited and what property damaged, and the owners' 

names of the same; and on the day of , 18 — , filed with said clerk 

a report giving a description of the property, with the names of the owners 



3I7I] 



CITIES. 



[248 



of such property, which report was accompanied by a notice, filed with said 
clerk, that they would meet at the council chamber of said city at 10 a. m., on 

the day of , 18 — , for the further consideration of said proposed 

street. At the time designated they met .in said council chamber, and having 
found that the city clerk had issued to the city marshal a notice of the time, 
place and object of said meeting, which had been served by said marshal upon 
all the persons affected by said proposed street, and who were named in said 
first report, at least ten days before the time of said meeting, they proceeded to 
investigate the matter of opening said proposed street, and in pursuance of 
said investigation report as follows: 



PROPERTY TO BE APPROPRIATED. 



That it will be necessary to appropriate the following property, of the 
value named: 



Description of Property 
to be appropriated. 


Value. 


Name of 
Owner. 




• 




























Total Value, 




PROPERTY THAT WILL BE DAMAGED. 

That the following property will be damaged in the amount named: 


Property not taken 
but damaged. 


Amount of 
Damages. 


Name of 
Owner. 
































Total Damages, .... 












PROPERTY THAT WILL BE BEXEFITED. 

That the following property will be benefited in the amounts named: 




Real Estate Beneficially Affected 
by the Opening- of sai'd Street. 


Amount of 
Benefits. 


Name of 
Owner. 
































Total Benefits, 













249] OPENING STREETS. [§§3172,3173 

The general character and direction of said proposed street, as to its length 
and width, is as follows, to wit: Beginning at the northeast corner of lot 13, 

of Wilson's addition to said city, county of , and State of Indiana, thence 

north six hundred feet, thence east sixty feet, thence south six hundred feet, and 
thence west sixty feet, to the place of beginning, valued at $ . 

That the sum of $ should be paid by said city, [or, that no amount 

should be paid bv said city, except the expenses and pay of the city commission- 
ers and their clerk, a schedule of which is hereto attached.] 

[Sig7ied by at least three commissioners.] 

SCHEDULE OF COSTS. 

davs' services as commissioner ($2.00), $ 6 00 



A. B., 


^ 


C. D., 




F. F., 


4 


H.I., 


4 


J. K., 


4 



( ' 




( ' 




( ' 




( ' 




( ' 





.... 4 00 
.... 8 00 
.... 8 00 
.... 8 00 

L.M., 10 " " " clerk ( " ), 20 00 

Total, $54 00 

« Sec. 3172. Report. 6. The character of the change or im- 
provement shall be stated with reasonable certainty ; and the real 
estate for which damages are awarded, and that upon which bene- 
fits are assessed, shall be described with like certainty in the report 
of the commissioners. In cases where both benefits and damages 
shall be assessed upon the same real estate, or to the same person 
or persons, the benefits, if less than the damages, shall be deducted 
from the assessment of damages. In assessing benefits, the said 
commissioners shall consider, not only the real estate through 
which the proposed improvement is to pass, but shall consider all 
such as is benefited and which is in the vicinage. 

See § 3171, 7iote. 

Sec. 3173. Report as to infants and insane. 7. In case any land- 
owner interested in or affected by such proceedings shall be of un- 
sound mind, or shall be an infant, the commissioners shall certify 
the same to the proper court ; and said court shall, thereupon, 
appoint a guardian for such, infant or person of unsound mind; 
and thereupon the commissioners shall cause five days' notice to 
be given each guardian, who shall, thereupon, appear and protect 
the interests of his ward. In case such infant or person of unsound 
mind have a guardian duly appointed and qualified, then notice 
may be served upon such guardian, as provided in the second 
section hereof [§ 3168]; and such notice shall be valid and efiect- 
ual. If there be a defect of notice or failure of notice as to one 
or more interested persons, such failure or defect shall not affect 
such proceedings, except in so far as they may touch the interests 
or property of such person or persons themselves, and shall not 
avail any other person concerned in such proceedings. Upon the 
application of persons whose lands or property shall have been 
assessed, but who have not had notice (which they must affirma- 
tively show), the city clerk shall notify said commissioners, who 



§3173] CITIES. [250 

shall meet upon their own motion, hear and determine the claims 
of such persons (to whom five days' notice shall be given), and 
report to the council. In case they are entitled to damages which 
have not been assessed, the same shall be paid out of the city 
treasury ; and in case the land shall have been assessed with bene- 
fits, and the commissioners deem the assessment just, the original 
assessment shall be deemed valid and effectual, and shall be en- 
forced as originally made. 

Even if there be no notice^ an injunction can not be maintained, because of 
the provisions of this section, 78 Ind. 233. 

Commissioners' Notice to Court. 

To the Honorable Circuit Court: 

The undersigned, citj commissioners of the city of , hereby notify 

said court that in the matter of opening a street in said city they find that lot 
13 of Ristine's addition to said city is owned by R. S., a minor [or, a person of 
unsound mind], which will be affected by the opening of said proposed street. 
They therefore pray that a guardian be appointed for him. 
[Signed] 



Commissioners' Notice to Guardian. 

To U. 7"., Guardian of R. S.: 

You are hereby notified that the undersigned, city commissioners of 

the city of , State of Indiana, will meet at the council chamber of said 

city at 10 a. m. on the day of , 18 — , for the purpose of estimating 

the injuries and benefits to the property of said R.S., sought to be appropriated, 
and the damage and benefits to hi. real estate injuriously or beneficially affected 

by the opening of a street from to , within said city. 

[Signed] 



Marshal's Return. 

Served the within notice on U. T. by reading the same to him [or, by 
leaving a certified copy thereof at his last and usual place of residence]. 

Dated , 18—. 

L. X., 

City IMarshal. 

Clerk's Notice to Commissioners. 

To the City Commissioners of the City of , Greeting: 

You are hereby notified that in the matter of the opening of a street 

from to , within said city, K. B,, the owner of lot 13 of Williams' 

addition to said city, which was assessed with$ benefits [or, damages], has 

shown to my satisfaction that he had no notice of your meeting for the purpose 
of assessing the benefits [or, damages] aforesaid to said lot, occasioned by the 
opening of said proposed street. 

X. Y,, 

City Clerk. 

Application for Re-assessment. 

To the Clerk of the City of .• 



A. B., being duly sworn, upon his oath says that he is the owner of lot 

13 of Williams' addition to the city of , State of Indiana, which, in the 

matter of opening a street from to , within said city, has been as ■ 



251] OPENING STREETS. [§3x74 

sessed bv the city commissioners thereof with $ benefits; that said lot will 

not be benefited in that amount, but will be in fact damaged by said proposed 

opening in the sum of $ . And he states further that no notice of the time 

of the meeting of said city commissioners for the purpose of assessing benefits 
and damages cavised by the opening of said proposed street, was served upon 
him. nor did he have any actual notice thereof of the meeting of said city com- 
missioners to assess such benefits and damages, although he was at that time 

and still is a resident of said city [or, of the county of , State of Indiana], 

and such fact of his residence within said city [or, county] was never reported 
in the first report of said commissioners filed in the said matter; nor was he 
notified by the publication of any notice by you of said meeting of said 
commissioners. 

Whei;efore he asks that you notify said city commissioners of the fact that 
he had no notice of said meeting, and that he desires a re-assessment of sai'd 
lot. 

A. B. 

Subscribed and sworn to before me ihis day of , 18 — . 

X. Y., 

[Notarial Seal] Notary Public. 



Commissioners' Notice to Applicant for Re-assessment. 

To A. B.: 

You are hereby notified that the city commissioners of the city of 

, State of Indiana, will meet at the council chamber of said city at 10 a. 

m., on the day of -, 18—, to hear your application lor a re-assess- 
ment of benefits [or, damages] to lot 13 of Williams' addition to said city, owned 

by you, in the matter of opening a street from to , within said 

city. 

[Signed bv the commissioners. \ 

Sec. 3174, Action of council on report. 8. If the common coun- 
cil, within twenty-eight days after the filing of said report, shall, 
by a vote of two-thirds of the members thereof, determine to make 
the appropriation of the real estate for such improvement, they 
shall enact a resolution accepting said report, and requiring the 
city clerk to deliver a certified copy of so much thereof as assesses 
benefits and damages upon real estate, and in which the real estate 
so assessed is described, to the city treasurer. The common 
council may refer back the matters reported upon to said commis- 
sioners, with such suggestions as they may deem proper; and the 
commissioners shall meet and proceed, as provided in section 
twenty-three of this act [§ 3189]. 

• I. Until the report is duly accepted and the appropriation made, the pro- 
ceedings remain /;/ fieri ; and if not acted upon, the proceedings are at an end. 
It is not a judgment, but more like the verdict of ad quod dainnuiu jury. It 
"has no binding force, and none of the attributes of a judgment, until it has 
been acted upon by the common council in strict conformity wuth the require- 
ments of the statute." A resolution merely " accept inn-'''' the report is insul^- 
cient.^ 71 Ind. 7. A record of the action of the council must be made; it can 
not be shown 'by parol, even though no record of such action was ever made, 
124 Ind. 86. 

2. The council is not bound to act upon the first report unless it desires to 
make the appropriation within twenty-eight days; it is only upon the second 
report that it must act either for or against the proposed appropriation within 
that time, 71 Ind. 7. 



§3174] CITIES. ■ [252 

3 As soon as the report is accepted and the land appropriated, the city 
becomes liable for the z^xxxowrxtoi damages assessed; and suit can be maintained 
to recover them. The council can not thereafter set aside the assessment, nor, 
by refusing to open the street, avoid their payment. The property owner is 
not required to wait until the city collects the benefits, but is entitled to it "t 
once, 44 Ind. 97. 

4. The resolution of the council appropriating the land necessary for a 
street must be definite. But describing the land as a strip thirty-one feet wide, 
from the south side of a given lot next to the street to be widened, where that 
is the case, is good; and it is not vitiated by adding " so as to make the said 
street fifty feet in width," S2 Ind. 178. 

Report Referred Back. 

Be it ordained by the common council of the city of , that the 

report of the city commissioners in the matter of the opening of a street from 

to , within said city, filed with the city clerk on the day 

of , 18 — ,be and the same is hereby referred back to said commissioners, 

with the following suggestions, viz.: \State them.] Said commissioners are 

requested to meet in the council chamber at 10 a. m. on the day of 

18 — , to reconsider said report. 

Clerk's Notice. 

To the City Commissioner's of the City of ; 

You are hereby notified that your report in the matter of opening a 

street from to , within said city, filed with me on the day 

of , 18 — , at a regular [or, called] meeting of the common council was re- 
ferred back to you with the following recommendations, viz.: [State theui.] 
You are, therefore, by such council requested to meet at the council chamber 

on the day of , 18 — , at 10 a. m., to consider said recommendations. 

X. Y., 



Citv Clerk. 



Report of Commissioners on Recommendations. 



To the Common Council of the City of ; 

The undersigned, city commissioners of said city, hereby report that 
they have considered the recommendations made by your honorable body to 

them by resolution adopted on the day of , 18 — , in the matter of 

opening a street from to , and have adopted them, and so amended 

their report heretofore filed so as to correspond therewith, which report, as 
amended, is herewith tendered [or, decline to adopt them, and herewith return 
their original report]. 

[Signed by the commissioners.] 



Resolution of Acceptance and Appropriation. 

Be it ordained by the common council of the citj- of , that 

the report of the city commissioners of said city, in the matter of opening 

a street from to , filed with the city clerk on the day 

of , 18 — , be and the same is hereby accepted and adopted; and the 

land, as described in their first report, filed on the day of , 18 — , 

and as described in their said report of , 18 — , as necessary to be appro- 
priated, to wit: [Describe it by metes and bounds]^ be and the same is hereby 
appropriated for the purposes of said street, and is hereby dedicated to the use 
of the public as a public street and highway of this city, to be known as Vernon 
street; and the clerk is hereby ordered to deliver to the city treasurer a certi- 
fied copy of so much of said report as assesses benefits and damages upon real 



253] OPENING STREETS. [g§ 3175, 3 1 76 

estate, and in Avhich the real estate so assessed is described; and to file a com- 
plete copy of said report in the recorder's office of the county of , State 

of Indiana. It is further ordered that said Vernon street be not opened until 
the day of , iS — . 

AXOTHER FORM OF ACCEPTAXCE AXD APPROPRIATION. 

Resolved, By the common council of the city of , that the report 

of the board of city commissioners in the matter of opening and extending 

, be and the same is hereby, in all things, accepted, adopted and approved; 

that the benefits assessed and the damages awarded by said commissioners be 
and the same are hereby approved; that the real estate described in said report 
as necessary for the said opening and extension of said , be and it is here- 
by appropriated; and that the city clerk be and he is hereby directed to certify to 

the treasurer of the city of , Indiana, so much of said report as assesses 

benefits and awards damages upon the real estate, giving description thereof. 

Provided, however, that said treasurer shall not tender or pay any part of 
the damages occasioned by said opening and extension, as shown by said com- 
missioners' report, until the benefits assessed shall have been paid to said treas- 
urer, the collection of Avhich benefits the said treasurer is hereby directed to 
make as soon as said certified copy of said commissioners' report comes to his 
hands. 

The city clerk shall thereupon file for record in the office of the recorder of 

county, Indiana, the plat showing such opening and a certified copy of 

this resolution, all at the expense of the petitioners for said opening. 

Sec. 3175. Duty of clerk — Lien. 9. It shall be the duty of the 
city clerk to deliver a certified copy of said report, as provided in 
the preceding section, to the city treasurer, and to copy the entire 
report into the records of the common council, and to carefully file 
and preserve the original. The benefits assessed shall be a com- 
plete and valid lien upon the real estate described as assessed, from 
and after the time the aforesaid resolution is adopted accepting 
such report, and filing a copy thereof in the office of the recorder 
of the county; and such lien shall be valid and enforceable against 
subsequent purchasers, and shall have priority over all other liens 
except those for state taxes. 

Sec. 3176. Payment of damages. 10. The common council may 
determine to pay out of the general funds of the city the total 
amount of damages assessed, or any part thereof; and in case this 
shall be ordered and done, all benefits collected shall be paid into 
the treasury of the city, and shall belong to such city. In case the 
common council deem it proper to delay until such benefits are col- 
lected, they shall order the proceedings delayed until such benefits 
are collected : Provided, They shall not cause a delay beyond one 
year except in cases where the delay is caused by appeal, injunc- 
tion, or other legal proceedings. 

1. Until fayment or tender an injioictioii mav be maintained, loo Ind.206; 
19 Ind. 326. (See 78 Ind. 233.) 

2. Corporation is estopped to deny tlie title alleged in the application, 65 
Cal.241 ; 37 Kas,253; 87 111. 317; 17 Neb. 587, but see § 31S2. If there is doubt 
about the title, it should be alleged that certain persons claim to be the owners, 
and if a mistake has been made, the proceedings should be amended or aban- 
doned, 35 Minn. 439. 



§3177] CITIES. [254 

3. Voluntary acceptance of damages by the owner is a waiver of all errors, 
and estops the party from disputing legality of proceedings, 89 111. 509; 9 Wis. 
450; 80 111. 208; 48 Mich. 544. Payment of damages by corporation, in the absence 
of statute, will wa.ive appeal, but deposit for purpose of obtaining possession will 
not, 85 Mo. 307; 12 Ind.374. 

4. Where city has condemned land which is subject to a lease, and an entrj' 
is made authorizing it to take possession upon payment of the amount of corn- 
peijsation, the amount allowed for the leasehold must be paid, if possession under 
the proceedings is taken, although the lease has, in the meantime, expired. 
41 O. S.600. 

Sec. 3177. Collection of assessments, ii. Within ten days after 
the receipt of the certified copy of the report, as provided in 
sections eight and nine of this act [§§ 3174 and 3175], the city 
treasurer shall, in cases where the owners of the lands assessed are 
residents of the city, make demands of them, personally, for the 
amount of the benefits assessed, or shall leave at their residences 
written notices specifying the date of the filing of the report and 
the amount of the benefits assessed, and demandingpayment of the 
amounts assessed; but said notice need not describe the real estate 
assessed nor the character of the improvement or change, and shall 
be sufficient if it notify the person of the assessment, the date of 
filing, and the amount assessed. In case the person or persons 
owning the lands should be non-residents of the city or unknown, 
or their residences be unknown, then the treasurer shall publish, for 
three weeks consecutively, in a paper of general circulation, a notice, 
specifying therein the date of the filing of report, the description 
of the real estate assessed, the amount assessed, the names of the 
owners, if known (and, if unknown, stating them to be unknown). 
In case the persons notified personally, or by written notices left 
at their residences, shall fail to pay such assessments within three 
months thereafter, the treasurer shall proceed to collect such 
assessments as hereinafter provided ; and if the persons notified by 
publication shall fail to pay such assessments within one month 
after the last publication, the city treasurer shall proceed to collect 
such assessments as herein provided. The said assessments shall 
be collected and enforced in the same manner as assessments for 
street improvements ; and the provisions of the law in force at the 
time upon the subject of the collection of assessments for street 
improvements ordered by the common council shall govern the 
treasurer, and he shall proceed in accordance therewith ; except in 
this, that no precept shall be required, and that he shall proceed 
upon the certified copy of the report of the commissioners ; and 
with the further exception, that no other or further demand than 
that herein provided for shall be made. It is hereby made the duty 
of the treasurer to keep a proper record of all his proceedings. 

Notice of Assessment. 

To A B.: Office of City Treasurer. 

You are hereby notified that on the day of , 18 — , the 

city commissioners of the city of , State of Indiana, filed with the clerk 



255] 



OPENING STREETS. 



[§3177 



of said city a report of the assessment of benefits and damages, a certified copy 
of which is now in my possession, assessed by them in the opening of a street 

irom to , within said city, wherein it appears that property owned 

bv vou, to wit: {Describe it\ was assessed with $ benefits. You will, 



therefore, take notice that unless said sum of $- 



is paid within three months 



from the receipt of this notice, that I shall proceed to collect said sum of 
by levy upon and sale of said property as above described. 

Dated ^ ,18-. CD. 

Treasurer of the City of — 



Notice of Assessment by Publication. 

Office of City Treastirer. 
To A. B.: 

[Proceed as in the above notice until the -words "within three months," 

etc., and insert in place thereof^ as folloivs :] " by the day of , 18 — ," 

[ajtd conclude as above.] 

Treasurer's Record. 

Certified copy of the report of the city commissioners in the matter 

of opening a street from to , [or, Vernon street,] received on the 

day of , 18 — . 

Notified the following persons of their assessments of benefits at the time 
and in the manner stated below, to wit: 



Name of Person 
Notified. 



Date of 
Notification. 



Manner of 
Serving Notice. 



Received the following amount of benefits from the person named upon the 
property described, at the date given, to wit: 



Name of Person 
Pavinsr. 



Property 
Paid Upon. 



Date of 
Payment. 



Amount. 



Levied upon the following property, and sold the same at the time speci- 
fied, viz.: 



Name of 
Owner. 



Date of 
Levy. 



Property 

Sold. 



Date of 

Sale. 



Name of 
Purchaser. 



Price Disposed of 
Paid. Surplus. 



Paid or tendered the following amounts as damages to the persons named 
upon the property described, to wit: 



x-„ „„ Date of Payment Payment Aiuount Paid ■o.-^.^.^f,. 

or Tender. or Tender, or 1 endured. ^ 



§§317^ — 3iSo] CITIES. [-56 

Sec. 3178. Report of collections. 12. It shall be the duty of the 
city treasurer to report to the common council the amount received 
by him upon such assessments at their regular meeting next after such 
receipt. He shall pay the damages only upon warrants ordered by 
the common council and drawn by the city clerk. 

Sec. 3179. Private corporations. 13. In case the common 
council propose to appropriate a highway, bridge, or other prop- 
erty owned by a private corporation, or to assess benefits or dam- 
ages upon property so owned, the clerk shall give notice to such 
corporation; and the said notice shall be served upon any officer 
thereof residing in such city; and if there be no officer residing in 
the city, then upon any agent residing therein or doing business 
in such city for such corporation. When a highway or bridge 
within a city, owned by a private corporation, is abandoned, or 
suffered to be out of repair so as to incommode or endanger trav- 
elers, the commissioners aforesaid are required to consider these 
facts in estimating the injury, if any, accruing from its use or ap- 
propriation for public purposes by the city, and may also estimate 
whatever it may cost such city to make the bridge or highway safe 
and free from damage. 

Sec. 3180. Appeal. 14. If any person having an interest in the 
lands affected by such proceedings shall deem himself aggrieved 
thereby, he may appeal to any court of general jurisdiction, in the 
county within thirty days after the confirmation of said report by 
the council. In such case, the person asking the appeal must 
designate the court to which he appeals, and file a bond within 
thirty days from the confirmation of said report, conditioned for the 
payment of all damages and costs which may accrue by reason of 
such appeal should he not prosecute such appeal to effect. Upon 
such appeal, the regularity of the proceedings of the commissioners, 
and the questions as to the amount of benefits or damages assessed 
may be tried; but such appeals shall not prevent such city from 
proceeding with the proposed appropriation, nor from making the 
proposed change or improvement. The city clerk shall, upon the 
fifing of a. bond with sufficient surety, conditioned as aforesaid, 
make a transcript of the proceedings of the council requesting the 
meeting of the commissioners, the notice to the person appealing, 
the proceedings and the report of the commissioners, and the action 
of the common council thereon, upon the second day of the term. 
After filing the said transcript (and of which filing the appellant 
shall notify the attorney of the city, in writing), the appellant shall, 
in writing, state specifically the grounds of his objection to the pro- 
ceedings of the common council and commissioners; and [no] other 
questions shall be tried or heard, except such as are with certainty 
to a common intent presented by the aforesaid written statement 
filed by such appellant. If the transcript shall show that a majority 
of such commissioners were present at the meeting in which were 



257] OPENING STREETS. [§3l80 

had the proceedings appealed from, then no question shall be con- 
sidered or tried concerning" the request of the common council to 
the commissioners, nor as to the character of the notice or manner 
of serving it upon said commissioners. The transcript of the pro- 
ceedings of the common council and commissioners shall be con- 
sidered as the complaint; and the written statement, to be filed by 
the appellant as aforesaid, shall be in the nature of an answer or 
demurrer. Issues of law and of fact may be formed, tried, and 
determined as in other actions at law. The question as to whether 
notice was given others, or as to whether proper assessments were 
made in favor of or against persons other than the appellant, shall 
not be tried ; nor shall any question be tried which does not directly 
affect the property or right of the person or persons who take 
the appeal as aforesaid. No question shall be tried concerning the 
regularity of the appointment of the commissioners, their qualifica- 
tion or competency, unless the appellant, by answer duly verified, 
shall put such matters in issue ; but of their appointment, compe- 
tency, and qualification the records of the common council shall be 
piinia facie QYid^ncQ \ and it shall only be necessary for the city 
clerk, in the transcript to be certified by him as aforesaid, to recite 
that the coinmissioners were duly appointed and qualified, without 
in any wise setting out their appointment, qualification, or compe- 
tency in such transcript. If upon such appeal, the report of the 
commissioners as to the benefits or damages be greatly diminished 
or increased, the city may, upon payment of all costs, discontinue 
such proceedings. 

1. Although not the appellant, the city stands on the dock&t as plaintif, 
the transcript standing as a complaint. 

2. The ajis-iver of the appellant can not be stricken out on motion, 71 Ind. 
p. 17. Where the answer had attached as an exhibit a former proceeding for the 
opening of the street, it was held that where such answer varied in its allegation 
from the transcript, the latter controlled, 71 Ind. 7. 

3. While the question as to whether proper assessments have been made in^ 
favor of or against persons other than the appealing party can not be tried on, 
appeal; yet the question as to whether or not too much has been assessed! 
against him, or whether or not he should be assessed at all, may be tried; andint 
doing so he may show that one or more of the commissioners was incompetent 
to serve because of interest or relationship, 99 Ind. p. 419. See § 3167, note 2. 

4. The opinion of a witness may be taken as to the value of the land appro- 
priated, but the damages as to the residue can not be proved by his opinion.. 
Such damage can only be shown by the facts, circumstances, and situation of 
the land, from which the jury may assess the damages. Nor can the value of 
the strip appropriated be shown by asking a witness its value, considered with 
reference to the manner the appropriation affected the remainder of the land. 
49 Ind. 493. 

5. On appeal the only question that can be tried is the regularity of pro- 
ceedings and the amount of damages, 44 Ind. 97. 

6. The appeal is to the circuit court, 73 Ind. i. 

7. K demtcrrer ior \v?int oi facts is not permitted; but the objection to the 
proceedings must be specifically stated, if apparent on the face of the transcript, 
and if it consist of matters of fact not apparent on the record, it must be spe- 
cifically pleaded as an ansxver, 82 Ind. p. 181. 

17 



§ 3 1 So] ciTJES. [258 

8. After verdict the city may, on the payment of costs, dismiss the pro- 
ceedings, even though it has taken possession of the land appropriated, 97 Ind. 
451. 

Appeal Bond. 

We, A. B., C. D., and E. F., acknowledge ourselves jointly and severally 

bound to the city of , State of Indiana, in the penal sum of dollars. 

Witness our hands and seals this day of , 18 — . 

Whereas, said A. B., within thirty days last passed, was assessed by the city 

commissioners of said city in the matter of opening a street from to 

, within said city, with dollars benefits, upon lot 13 of Williams' ad- 
dition to said city, and the said A. B. has appealed therefrom to the circuit 

court : Now if the said A. B. shall prosecute his appeal to a final judgment, 
and pay all damages and costs which may be assessed against him on said ap- 
peal, then this bond shall be void; else in force. 

A. B.,[Seal.] 
C. D.,[SeaL] 
E. F. [Seal.] 



Approved , 18- 

X. Y., 

City Clerk. 



Notice of Appeal. 



To the Clerk of the City of ; 

You are hereby notified that the undersigned hereby appeals to the 

circuit court from the assessment of benefits and damages in the opening of a 

street from to , within said city, made by the city commissioners 

of said city, as evidenced by their report filed with you on the • day of 

, 18 — •, and accepted by the common council on the day of , 

iS — . An appeal bond is hereby ■ tendered, with C. D. and E. F. as sureties, 
conditioned for the payment of all damages and costs which may occur by rea- 
son of such appeal. 

A. B. 

Received and filed , iS — , 



X. Y., 

Citv Clerk. 



Transcript of Clerk. 



Be it remembered that upon day of , iS — , the following peti- 
tion Avas presented to the common council of the city of , State of In- 
diana, viz.: 

{Set out petition for the street. \ 

On the day of , 18 — , the following proceedings were had and 

held by said council as appears from the records thereof, viz.: 

\Set out resolution referring petition to committee.] 

On the day of , 18 — , said committee filed the following report, 

and the following proceedings were had, as appears of record, viz.: 
[Set out committee's report and resolutioji referring the matter to the city 

commissioners. '[ 
On the day of , iS — , said city commissioners, who had there- 
tofore been duly appointed and had qualified as such commissioners, filed the 
following report in the office of the city clerk of said city, to wit: 
[Set out first report.] 
At the same time said commissioners filed the following notice, viz : 
[Set out notice of place and time for assessing damages^ etc.] 
Thereupon the following notice was issued by the clerk of said city to the 
city marshal, viz.: 

[Set out notice to land-oxvners.] 

W^hich notice was returned by said marshal on the day of , iS — , 

indorsed as follows, to wit: 

[Set out marshal's rrtur7i.~\ 



259] OPENING STREETS. [§ 3 I 80 

Also the following notice was given by publication in the Daily Argus, 
viz.: 

\Set out notice ftihli$hed.\ 
as appears by the following proof of publication, viz.: 
\Sct out f7'oof of publication.] 

Upon the day of , 18 — , said city commissioners filed in the clerk's 

office of said city the following report, to wit: 

[Sat out second 7'cport.] 

Upon the day of , 18 — , the following proceedings were had and 

held in said council, as appears from the records thereof, to wit: 

{Set out resolution accepting the report atid appropriating the land.] 

I, X. \ ., clerk of the city of , State of Indiana, hereby certify that the 

above and foregoing is a full, true and complete transcript of all the proceed- 
ings had and held by the common council and city commissioners of said city, 
as appears from files and the records of said city; and is a full, true and complete 
copv of all papers filed in my office in the matter of the opening of the street 
therein referred to. 

In testimony whereof, I have hereunto set my hand and the corporate seal 
of said city this day of , 18 — . 

[Corporate Seal] X. Y., 

Clerk of the City of . 

Notice to City Attorney. 



To X. Z., City Attorney of the City of ; 

You are hereby notified that I have appealed to the circuit 

court, from the proceeding of the common council and of the city commis- 
sioners of said city, in the matter of opening a street from to [^or, 

Vernon street]. 

Dated , 18—. A. B. 

Answer. 

The City of , vs. A B , No. . 

A. B., as his grounds of objections to the proceedings of the common 
council and city commissioners of the city of , as evidenced by the trans- 
cript filed in this appeal, makes the following statement: 

1. That lot 13 of Johnson's addition to said city, owned by him, is assessed 

with $ benefits, when in fact said lot is only benefited in the sum of 

$ . 

2. That lot 13 of Johnson's addition to said city, owned by him, is assessed 

with $ benefits, when in fact it will be damaged by the opening of said 

street in the sum of $ . 

3. That C. D., E. F.,and G.H., who were three of said commissioners that 
served in the assessment of benefits and damages in the proceedings for the 
opening of said proposed street, were disqualified to serve as such commis- 
sioners in said proceedings, for the reason that they each severally owned prop- 
erty, to wit: said C. D. owned lot 20, said E. F. lot 41, and G. H. lot 36, all of 
Johnson's addition to said city, all of which lots were subject to be assessed 
with benefits in said proceedings, and affected thereby. 



U. Z., 

Attorney for A. B. 



Verdict. 



[Title.] We, the jury in this cause, assess to the said A. B., as the actual 
damages [or, benefits] which will be caused to his property, as described in the 
transcript of the city filed in this case, by reason of the opening of a street Irom 

to , within said citj^ as provided in the resolution and ordinance 

set out in said transcript, at $ . 

C. D., 
Foreman. 



3i8i, 3182] CITIES. [260 



Judgment. 

[Title] Comes now the city of , b;»- X. Z., its attorney, and comes 

A. B., by R.U., his attorney, and said A. B. moves for a judgment on the verdict 

heretofore rendered herein, assessing to him $ damages which will be 

caused to his property, to vrit: [^Describe if,] by the opening of a street from 

to , within said city, as provided in -the resolution and ordinance 

set out in the transcript herein, which motion the court sustains. It is there- 
fore considered and adjudged by the court that said A. B., in said improvement, 

recover of the city of -, dollars to him awarded in said verdict, and 

his costs taxed at dollars and cents. 



Sec. 3181. No injunction. 15. If the commissioners make a 
report to the common council, as herein provided, no injunction 
shall lie to restrain proceedings, unless the common council shall 
proceed to appropriate property upon which damages have been 
assessed, without first causing the same to be paid or tendered; 
but all other questions shall be raised and tried by appeal in cases 
where damages have been assessed, paid, or tendered. 

Until the contrary appears, it will he ;^resunied that all damages were assessed 
and teyidercd, 78 Ind. 233. 

Sec. 3182. Payment of damages. i6. It shall be the duty of 
the city treasurer to payor tender, or cause to be paid or tendered, 
the damages assessed to the persons to whom assessed. Should 
such damages be claimed by different persons, and the treasurer 
be duly notified thereof, he shall, in writing, certify that fact to the 
attorney of the city, and it shall be the duty of the attorney to file 
a bill of interpleader in a court of general jurisdiction of the coun- 
ty, making parties thereto such claimants ; and he shall also pay 
into the hands of the county clerk the damages aforesaid ; and upon 
the determination of the question, the money shall be paid to the 
party entitled thereto ; but the damages, so far as concerns such 
city, shall be deemed paid from the time of their payment into the 
hands of the county clerk. It shall be the duty of the attorney of 
the city to take a receipt from the county clerk for the money so 
paid, which shall be by him delivered to the city treasurer, who 
shall file and preserve the same. It shall be the duty of said coun- 
ty clerk to safely keep such m.oneys, and if he go out of office, to 
hand the same over to his successor. 

Where a street was petitioned for by a land-owner, and an ordinance was 
passed declaring the street opened, Avhen in fact it was not opened, nor had any 
arbitrator (under the old law) been appointed to assess damages; and eight 
vears afterward, after such land-owner had sold the land through which the 
street was to run, the council adopted a second resolution, declaring that the 
street be opened, and were about to do it ; in an action to restrain the city, it 
was held not to be a good defense that the plaintiff's grantor had tvaived all 
claims to damages', on the ground that a sale of the premises by their owner, 
before the opening of the street, was a withdrawal of the offer to waive dam- 
ages, 27 Ind. 66. 



\ 



26 1 ] OPENING STREETS. . [§3l83 

Notice to City Attorney. 

To X. r., City Attorney for the City of ; 



I hereby certify that the damages assessed upon lot 13 of Johnson's ad- 
dition to said citv, bvthe city commissioners, in the matter of opening the pro- 
posed street from to , Avithin said city, in the name of A. B., is 

claimed by both A. B. and C. D,, each claiming to be the owner of said lot and 
entitled thereto. 

U. Z., 
Treasurer of the Citj' of . 

Sec. 3183. Tendering damages — Injunction, 17. When the 
owners of the property are residents of the city, the treasurer shall 
tender damages to them at their places of business, or at their resi- 
dences or domiciles, as he may elect. When such persons are 
unknown or not residents of the city, or if the treasurer, upon 
diligent inquiry, can not ascertain the residence or place of busi- 
ness of a resident of the city, he shall publish in a daily newspa- 
per, once in each w^eek for two successive weeks, a notice, specify- 
ing the amount in the treasury to be paid as damages, and stating 
the real estate upon which assessed and the readiness on his part 
to pay the same. Such notice, so published as aforesaid, if it 
state with reasonable certainty the amount of damages and so 
describe the real estate upon which assessed, shall constitute a 
valid and effectual tender. In case an injunction is obtained 
because damages assessed have not been paid or tendered, the 
defendant may, at any time before the determination of the suit, 
pay or tender the damages assessed, with interest from the time 
the property is entered upon, seized, or appropriated, and all ac- 
crued costs, and thereupon the injunction shall be dissolved. It 
shall be the duty of the attorney of the city, when an injunction is 
obtained upon the grounds aforesaid, to notify the city treasurer to 
ascertain the amount of damages assessed, and interest thereon and 
costs accrued ; and such amount shall be drawn from the treasury, 
and paid into the court from which such injunction issued. The 
said treasurer shall take from the clerk of the court in which such 
suit for injunction is pending, a receipt for the amount paid him ; 
and from the time of such payment into court, as aforesaid, the 
city shall be absolved from liability, unless there are other valid 
grounds for an injunction. 



Notice to Unknov/n Owners. 

Notice is hereby given to ^vhom it may concern, that upon the day of 

18 — , the city commissioners of the city of , State of Indiana, tiled 



\vith the clerk of said city a report in the matter of opening a street from 

to , within said city, which report was accepted by the common council 

of said city, and the land therein described as neccessary to be appropriated was 

so appropriated on the day of , iS — , and a certilied copy of so 

much thereof as contained an assessment of benefits and damages was placed 
in my hands by the city clerk; wherein it appears that there was assessed to lot 



§3184] ■ • CITIES. [262 

13 of West's addition to said city, damages in the amount of $ , the own- 
ership of which lot is unknown. Notice is therefore given that the said city 

stands ready and willing to pav said sum of $ to whomsoever is entitled 

to it. 

C. D., 

Treasurer of the City of . 

Notice to Non-Resident. 
To A. B.: 

You are hereby notified that [proceed as above to the first dollar mark, 
and then add] Notice is therefore given you [close as above]. 



[1SS5, p, 234. Adopted and in force April 13, 1885.] 

Sec. 3184. Vacation of streets, etc. 18. The common council shall 
have power to vacate streets, alleys, water-courses, public highways, 
or squares, or any part or parts of either, whenever they may deem 
it expedient for the public interests. Whenever a petition shall be 
presented by three reputable freeholders, praying for any such 
vacation, the common council shall refer the petition and matters 
appertaining thereto to the city commissioners. The persons pray- 
ing for such vacation shall serve notice, by personal service or by 
leaving copy at the residences of persons interested, or by publica- 
tion if such person be a non-resident or his residence is unknown, 
once in each week for three weeks in a newspaper of general circu- 
lation, published in said city, and shall show, by affidavit, due 
service of such notice. The said petitioners shall accompany their 
petition with a map or plat of the street, alley, highway, or square, 
or the part or parts thereof which they propose to have vacated; 
and shall, on said map or plat, show the surrounding locality; and 
shall also state the reasons upon which they base their petition for 
vacation. All the expense of such proceedings shall be paid by 
said petitioners, unless the common council shall otherwise direct. 

NECESSARY STEPS TO VACATE A STREET. 

The following are the steps and order in Avhich they should be taken: 

1. Title. Before a city can vacate a street it must have acquired, either by 
condemnation or dedication, a right to use that portion to be vacated, for a 
public street or way, § 3184. 

2. Petition and map. A petition, signed by three reputable freeholders of 
the city, must be presented to the council and by it referred to the city com- 
missioners. They must also present a map of the street to be vacated and the 
surroundings, § 3184. 

3. Notices. The petitioners must serve a ten days' notice, on every person 
whose lands will be affected by the vacation, of the time and place of the meet- 
ing of the commissioners, either by reading it to him or by copy left at his 
residence, and if a non-resident, or his residence be unknown, by publication in 
a newspaper for three consecutive weeks, § 3184. 

4. Cojnmissioners'' proceedings. The commissioners meet at the time and 
place set, examine all the premises, hear evidence, note who are objecting, and 
if all persons interested are not notified, require the petitioners to notifv them, 
§3185. 



263] VACATION OF STREETS, [§3184 

5. Rep07't of coviviissioners. Within ten days after they have determined 
the \vhole matter they file with the clerk for the council a report showing: 
(i) the length, width and location of the street to be vacated; (2) the value of 
the land to be vacated; (3) the benefits to the persons desiring the vacation; 
and (4) the names of those objecting and their interest therein, § 3186. 

6. Action on report. The council may refer the report back to the com.- 
missioners, <^ 3187 and § 3189, for correction ; but they must, unless relerredback, 
accept or reject it within twenty-eight days; and if a second report is made, 
they must act upon that within the same period of time after it is paid, § 3187 
and § 3189. 

7. Payjne?it of benefts and costs. Any one assessed with benefits must pay 
them, by order of the council, fnto the city treasury within twenty days, and 
until paid there can be no vacation, § 3187. The petitioners pay the cost of the 
proceedings, § 3184. 

8. Property oivner objecting. If a property owner affected by the proposed 
vacation objects, there can be none, § 3187. 

9. Plat or map. The petitioners must at their own expense make a map 
or plat of that portion of the street vacated and file it in the recorder's office, 
§3192. 

NOTE AND FORM. 

I. Where the public easement in a street has been vacated., the freehold or 
soil reverts to the original dedicator or owner of the land, 10 Pet. 26; 6 Pet. 
498; 94 111. 26; 75 111.391; contra under stat. 46 la. 546. But if the original 
proprietor has conveyed the adjoining lot by description bounding the lot by 
the street, the rule of construction of deeds making a "stream" or a " road " a 
boundary would apply, and the grantee would take to the middle of the street, 
svibject to the easement, in which case, upon vacation of the easement, the land 
to the middle of the street would go to the adjoining owner, 40 O. S. 332. But 
if the conveyance bounds the lot by the line of the street, this rule would not 
apply, and the reversion would be to the original proprietor, Id. 

Petition for Vacation. ' 

To the Common Council of the City of ; 

The undersigned, freeholders of said city, pray that the alley of said city 
running north from St. Joseph's street to St. Mary's street, between Alabama 
and New Jersey streets, be vacated for the following reasons, viz.: \State them.\ 
They herewith file a notice which they caused to be served upon all persons that 
will be affected by the vacation of said alley. They also herewith file a map or 
plat of so much of said alley as it is proposed to vacate, showing the surrounding 
locality thereof. 

Notice. 

To A. B., etc. {Set out all the names of persons that xvill be affected by the pro- 
posed vacations]. 

You are hereby notified that the undersigned will petition the common 

council of the city of , State of Indiana, on the day of , 18—, 

for the vacation of the alle}^ of said city running from St, Joseph's street to St. 
Mary's street, between Alabama and New Jersey streets. 
\Signed by petitioner s.] 



State of Indiana., County of , .v^. 

C. D,, upon his oath, says that he served the above notice upon A. B., 
etc., by reading the same to him, and upon L. K. by leaving a copy at his last 
and usual place of residence. 

C. D. 



§3184] CITIES. [264 

Subscribed and sworn to before me this day of , 18 — . 

[Seal.] X. Y., 

Xotar],- Public. 
[The above notice can be published once a week for three weeks in a news- 
paper of general circulation in the city.] 



Resolution of Reference. 

Resolved, that the petition of C. D. and others, with the accompany- 
ing papers, for the vacation of an alley of this city, running from St. Joseph's 
street to St. Mary's street, between Alabama and New Jersey streets, be and 
the same are herebv referred to the citv commissioners of this citv. 



Another Form of Resolution of Reference. 

Resolved, by the common council of the city of , that the peti- 
tion of and others, praying for the vacation of , be referred to the 

board of city commissioners, together with the plat accompanying the same, 
with instructions to assess benefits and damages caused by such vacation, and 
to make due report to the common council. The said board of city commis- 
sioners to return all petitions, plats, and notices. 

The city clerk is hereby required to issue and the city marshal to serve the 
proper notices upon the city commissioners, and the petitioners are hereby re- 
quired to serve the proper notices upon the property owners, and to show, by 
affidavit, due service of such notices; provided, that before the city clerk issue 
the said notices to the city commissioners a bond shall be filed with said city 
clerk to the approval of the mayor, guaranteeing the payment of all costs and 
charges of said commissioners in this matter. 



Bond. 

State of Indiana^ County, ss : 

We, the undersigned, hereby bind ourselves, our heirs, executors, and 
administrators firmly to pay to the city of the sum of two hundred dol- 
lars (.$200). without relief from valuation or appraisement laws. 

In witness whereof, we have hereunto subscribed our names this — day 

of , 18—. 

The condition of this bond is such that, Whereas, X, Y, Z, and others have 
petitioned for and the common council have referred such petition to the board 
of city commissioners, in which petition the said petitioners pray for the vaca- 
tion of twenty (20) feet ofif of the west side of Dakota street, from Morris street 
to the southeast corner of lot forty-three (43) in the Peru and Indianapolis 

Railroad company's south addition to the city of , Indiana. Now, if the 

undersgned shall pay all of the costs and expenses occasioned by such pro- 
posed vacation then this obligation shall be null and void, otherwise to remain 
in full force and efiect. 

Signed by us this day of , 18 — . 

[Seal.] 

. __[ Seal.] 



Clerk's Notice to Commissioners. 

[See form under § 316S.] 



265] VACATION OF STREETS. [§§ 3 1 85, 3 1 86 

Sec. 3185. Proceedings of commissioners. 19. The city com- 
missioners shall meet pursuant to [such] notice; and shall examine 
witnesses and hear evidence, and may administer oaths, and ad- 
journ from time to time. They shall view the street, alley, high- 
way, or square, or part thereof, proposed to be vacated, and shall 
determine what persons, if any, will be benefited thereby ; and 
shall assess such benefits, if an)^. In case any property owner 
immediately upon the line of said street, alley, highway, or square, 
or part thereof, sought to be vacated, who is directly interested 
therein, shall object to such vacation, the city commissioners shall 
report such fact to the common council. If the commissioners 
should consider that the necessary or proper parties have not been 
brought before them, they may require the petitioners to notify 
each person or persons as they may deem entitled to notice. 



Notice to Omitted Property Owners. 
To L. X.: 

You are hereby notified, by order of the city commissioners of the citj'- 

of , State of Indiana, that there is now pending before them the matter 

of vacating the alley running from St. Joseph's to St. Mary's streets, between 
Alabama and New Jersey streets, within said city; and that they will meet on 

the day of , i8 — , at lo a. m., in the council chamber of said city, 

to hear any objection that you may desire to make. 

A. B. 

State of Indicuia^ County ,of .* 

A. B., upon his oath, says that he served the above notice on L. X. by 

reading the same to him on the day of , i8 — . 

A. B. 
Subscribed and sworn to before me this day of , i8 — . 

[Seal.] X. Y., 

^Notary Public. 



[1875 S., p. 17. Approved and in force March 17, 1875.] 

Sec, 3186. Eeport. 20. Within ten days after their determina- , 
tion, such commissioners shall file in the office of the city clerk, 
who shall transmit the same to the common council, a report in 
writing, stating therein — 

First. The length, width, and location of the street, alley, high- 
way, or square proposed to be vacated. 

Second. The value of the land upon which such street, alley, 
highway, or square is situated. 

Third. The benefits to the persons desiring the vacation. 

FoiLrth, The names of property owners or persons who may 
object to the vacation of such street, alley, highway, square, or 
park, and the nature of their interest therein. 

Commissioners' Report. 



To t/ic Common Council of tJic City of • 

The undersigned, city commissioners of said city, hereby report in the 
proposed vacation of the alley of said . between Alabama and New Jer- 



§3187] 



CITIES. 



[266 



sey streets, running from St, Joseph's street to St, Mary's street, that the length 
thereof is four hundred feet, and the width thereof twenty feet; that the value 
of the land upon which so much of said alley, as it is proposed to vacate oc- 
cupies, Is $2,000.00; that the lot within said city, State of Indiana, and the owners 
thereof, with the amount of benefits to each lot that will be benefited by said 
vacation, is as follows, to wit: 



Xarne of Owner. 



Amount of Benefits. 



The persons objecting to the proposed vacation of said alley, with a descrip- 
tion of the property owned by each, is as follows: 



Name of Ownei 



Description of Lot. 



That the interest of such property owners thus objecting is that of abutting 
lot-owners whose lots abut upon that part of the alley that it is proposed to va- 
cate. No property owner or person objects to the vacation of said alley. 

The commissioners ask for an allowance of the amounts appended hereto for 
services rendered in said matter. 

[Signed] 



[1885, p. 234. Adopted and in force April 13, 1885.] 

Sec. 3187. Action on report. 21. The common council shall 
either refer the request [report] back to the commissioners, or ac- 
cept or reject the report, within twenty-eight days after it is made 
to them. If they accept such report, they shall require the per- 
son against whom benefits are assessed to pay the same into the 
city treasury within twenty days thereafter. The common council 
shall have no power to order such vacation when objected to by 
property owners adjacent thereto. No person shall have any 
power or right to make any private use of any street, alley, high- 
way, or square, or part thereof, ordered to be vacated until the 
benefits assessed have been fully and entirely paid; and unless 
paid within the time limited, the proceeding shall be wholly void. 

1. A person outside of therzYi' boundaries \\-h.o%Q. land touches the city limits 
and abuts upon the termi7ius of the street, is a stranger to the city, and can not 
object to the vacation; nor can he object because an abutting property owner 
wdthin the city objects, 93 Ind. 533. 

2. If a 7'emo7istra7ice is filed against the proposed vacation, the council can 
proceed no farther unless it be withdrawn; and an injunction lies to prevent the 
proposed vacation, 44 Ind. 418. 

Resolution Adopting tlie Report. 



Resolved, that the report of the city commissioners of this city, upon 
the proposed vacation of the alley running from St. Joseph's street to St. Mary's 



26/] VACATION OF STREETS. [§§3188,3189 

street, between Alabama and New Jersey streets, filed with the city clerk on 

the day of , iS — , be and the same is hereby accepted and adopted; 

that the persons therein assessed with benefits be and are hereby required to 
pay the same into the city treasury within twenty days from this date. 



Resolution Vacating Alley. 

Whereas, it has been shown to this council, Avhich is hereby found as 
a fact, that all of the benefits assessed in the report of the city commissioners 

of this city filed with the city clerk on the day of , 18 — , upon the 

proposed vacation of an alley running from St. Joseph's to St. Mary's street, 
between Alabama and New Jersey streets, has been fully paid by the persons as- 
sessed therewith into the city treasury within twenty days from the date of the 
acceptance of said report by this council; therefore 

It is hereby ordered and resolved that so much of said alley as is above 
described, be and the same is herebv vacated and abandoned as a public alley. 
The petitioners for the vacation of the same, to wit: [Set out their naj/ies,] are 
hereby required to pay all the costs of this proceeding. 



Another Form of Resolution. 

Resolved, by the common council of the city of , that the report 

of the city commissioners in the matter of the petition of and others, 

praying for the vacation of , be and the same is hereby, in all things, ac- 
cepted, adopted and approved, and that in accordance with said report the said 
as described in said report, be and the same is hereby vacated. 

Resolved further, that the said petitioners be and they are hereby required 
to pay to the city treasurer for the city, iwithin twenty (20) days from the 

adoption of this resolution, the sum of $ , being the amount of benefits 

assessed over the damages by reason of such vacation; and also the sum of 

$ , being the amount of expenses reported by the city commissioners as 

taxed in this matter ; and that said petitioners be and they are hereby required 
to have made out, by the city civil engineer, filed by the city clerk, and record- 
ed in the recorder's otiice of county, Indiana, a plat of the said 

hereby vacated, and to procure from the city clerk and have recorded in the 

recorder's ofhce of county, Indiana, a certified copy of this resolution, all 

at their own expense. 

Provided, that until the said benefits and expenses are paid as aforesaid, and 
such plat and certified copies of said proceedings recorded as aforesaid, said 
shall not be vacated or otherwise used then as now- 



[1875 S., p. 17. Approved and in force March 17, 1875.] 

Sec. 3188. Clerk's duty. 22. It shall be the duty of the city 
clerk to keep, in a separate book, a record of all proceedings of 
the common council and city commissioners concerning the open- 
ing, laying out, changing, and vacation of streets, alleys, and high- 
ways, and to carefully and accurately index the same: Piovidcd, 
That the common council may furnish him with printed blanks. 

Sec. 3189. Eeference of report and proceedings. 23. The com- 
mon council, upon examination of any report of such city commis- 
sioners, may refer the same back to the said commissioners for 
further action ; and when so referred, the common council shall 
designate at what time such commissioners shall meet to re-exam- 
ine the matters; and the commissioners shall meet upon that da}-; 



§3190] CITIES. [268 

and of the action of the comnnon council, and of the time of meet- 
ing, the parties interested shall take notice without any notice 
whatever being served upon them. The common council shall 
have power to refer any report whatever, under any provision of 
this act, back to said commissioners ; and when so referred, the 
commissioners shall, within ten days after the cdnclusion of their 
examination upon such reference, make a report as hereinbefore 
provided ; and the common council shall, within twenty-eight days 
after the same is made, either approve or disapprove the same. 
The proceedings upon such second report shall be the same as that 
provided where the first made is accepted and approved. When 
a second report is made, it shall be deemed final; and the common 
council must accept or reject the same within twenty-eight days 
after it is made to them. When any report is referred back to the 
commissioners, the common council may make such suggestions 
as they may deem proper, and miay also call the attention of the 
commissioners to errors and defects, if any there be, in such re- 
port; but such suggestions shall not be binding upon said commis- 
sioners. Upon such reference, the commissioners shall meet as 
hereinbefore provided, and all persons shall take notice thereof as 
hereinbefore provided; and said commissioners may amend or alter 
their said report as they may deem proper and just, and shall con- 
sider any and all suggestions made to them by the common council. 

The council can refer hack the first report, but must either accept or reject 
the sec07id zvithin Hventy-eight days after it is made, and such action is final ; 
but the statute contains no such provision in relation to its action on the first 
report, 71 Ind. 7. 

Sec. 3190. Change of street on petition of abutters. 24. When- 
ever a street, alley, highway, or water-course shall have been open- 
ed or laid out, the abutters thereon may, by mutual agreement, 
change the same so as to give it a proper vacation [location], width, 
or direction ; provided they shall first obtain the consent of the 
common council. Before any such change shall be made, the per- 
sons interested therein shall file with the city clerk a written agree- 
ment, and shall petition the common council to change or alter 
such street, and shall state in their petition the reasons for such 
change, and shall accompany the petition with a map or plat of the 
highway and the surrounding locality. 

Agreement to Change Street. 



The undersigned, each the owner of the lots within the city of 



State of Indiana, set out opposite their names, and which abut upon the street 
proposed to be changed, hereby mutually agree that Vine street, running from 
Franklin street to John street, in said city, may be changed as follows, to wit: 
[Si'^ecifically set out the proposed cha7igc.\ 



Names of Owners. 

[Signed by oivners agree- 
ing.l 



Description of I^ot. 



269] VACATION OF STREETS. [§3191 

To the Comjnon Council of the City of .• 



The i;ndersigned repectfully show to your honorable body that they 
are each the OAvners of the lots or tracts of land respectively set opposite their 
names, which lots are situate within said city, State of Indiana, viz.: 



Xamc of Owner. 



Description of Lots 
or Tracts of Land. 



That they have mutally agreed in writing, signed by each one of their 
number, which contract is hereto attached, marked " Exhibit A," and made a 
part hereof, that Vine street, between Franklin street and John street, within said 
city, may be changed as follows, to wit: \Set out the proposed change as set out 
in the xvritten agreement.] Said lots and tracts of land, as above described, are 
all the lots and tracts that abut upon that portion of Vine street which it is pro- 
posed to change; and no other person or persons own land abutting upon isaid 
part of Vine street than your petitioners. 

The reasons for such proposed change are as follows, viz.: [Set out the reasons.] 

They herewith file a map of so much of Vine street and the surrounding 
locality as will be affected by said proposed change. 

They pray that said street may be changed according to the terms of said 
agreement. 

[Signed by all the land-ow7iers.] 

Journal Entry. 

Whereas, A. B. and others have filed the following written agreement 
with the clerk of this city, to wit: [Set out the agreenie7it.] 

And, whereas, they have also petitioned this council in writing, as follows, 
to wit: [Set out the petition.] 

And, whereas, this council finds that all the owners of lots abutting upon so 
much of Vine street as it is proposed to change have signed said agreement and 
said petition, and thereby are consenting to said change; therefore 

Resolved, that so much of Vine street as lies between Franklin street and 
John street be changed as follows, in accordance with said agreement and peti- 
tion, to wit: [Set out the change.] To take effect and be in force when said 
petitioners shall have procured from the city civil engineer of this city a map 
or plat of said proposed change; and shall have caused the same to be recorded 
in the recorder's ofHce of the county of — , State of Indiana. 

Sec. 3191. Eemoval of obstrnetionG, etc. 25. The common 
council shall have power to pass all ordinances necessary to more 
effectually carry into execution the powers herein granted, and 
which are not inconsistent with the laws of the State ; and they 
may also cause to be opened streets, alleys, or highways, which 
have been laid out or opened, but which have not been vacated; 
and they shall have power to cause all obstructions to be removed 
from highways, streets, alleys, or water-courses, when necessary for 
the general welfare. The marshal of said city shall have full power to 
open any street, alley, or highway, when directed by the common 
council, and may remove any and all obstructions therein. V/hen 
any person shall, after five days' notice, fail, neglect, or refuse to 
remove obstructions, the marshal shall cause the same to be done 



§§ 



3192— 3194] CITIES. [: 



at the expense of such persons, and shall cause the city attorney 
to enter an action therefor; and in such action, judgment shall be 
rendered against such person for the reasonable expense and cost 
of such removal. 

Sec. 3192. Piats. 27. When any street or alley shall have 
been opened or laid out, or whenever such street or alley shall be 
vacated, a proper plat thereof shall be filed in the recorder's office 
of the county in which such city is situated. In case of the open- 
ing or laying out of any street or alley, the plat shall be made by 
the city engineer and filed by the city clerk ; and in case of a vaca- 
tion of any street or alley, the persons desiring such vacation shall, 
at their own expense, cause such plat to be made out, filed, and 
recorded ; and no order of vacation shall be deemed of effect until 
such plat is filed in the office of the recorder, as aforesaid. 

Sec. 3193. Pending" proceedings. 28. No proceedings now 
pending, nor any action pending or right of action, shall be ex- 
tinguished or rendered invalid by the provisions hereof; nor shall 
anything herein contained be construed as abridging the powers 
of the incorporated cities of the State as conferred by the act of 
incorporation, except as herein expressly provided. 

Sec. 3194. Compensation and damages. 29. If any owner of 
real estate shall, after the service of notice and during the pendency 
of such proceedings, make any improvements of the real estate 
sought to be seized for the purpose of street, aUey, highway, or 
water-course, he shall not be entitled to any compensation what- 
ever therefor; and if any land-owner shall, after service of notice 
and during the pending of such proceeding upon him, do any act 
which shall renderthe opening or change of a street, alley, highway, 
or water-course more expensive, the expenses thus caused shall be 
deducted from any charges awarded him on his real estate : Pro- 
vided, That nothing herein contained [shall be construed] as pre- 
venting any such owner from receiving just compensation for such 
improvements as may have been commenced or contracted for prior 
to the service of such notice. It shall be the duty of all persons 
laying out out or dedicating streets, alleys, or highways to make 
the same conform in all respects to those of the city; and when 
they do not so conform to streets, alleys, or highways already laid 
out, the existence thereof shall not be deemed to benefit the real 
estate of such person: Provided, That nothing herein contained 
shall be considered as requiring such owner to grade or otherwise 
improve such highway, except as provided in the general law for 
the incorporation of cities. 



271] AXNI^XATION OF TERRITORY. [§3I95 



ARTICLE 6.— ANNEXATION OF TERRITORY. 

SEC. SEC. 

3195. Extension over platted lots. 3i97> Proceeding's by county board. 

3196. Extension over contiguous lands — Ac- 

tion of council. 

[1S67, p. 33. Approved and in force March 14, 1S67.] 

Sec. 3195. Extension over platted lots. 84. Whenever there 
shall be or may have been lots laid off and platted adjoining such 
city, and a record of the same is made in the recorder's office of 
the proper county, the common council may, by a resolution of 
the board, extend the boundary of such city so as to include such 
lots; and the lots thus annexed shall thereafter form a part of 
such city and be within the jurisdiction of the same. The com- 
mon council shall immediatetly thereafter file a copy of such reso- 
lution, defining the metes and boundaries of such addition, in the 
office of the recorder aforesaid ; which shall be recorded. 

1. Annexations ^tere legalized by general city law of 1857, 24 Ind. 169; 20 
Tnd. 477. The motive of a city in annexing territory can not be inquired into, 
in an action to restrain the collection of taxes levied on the same by the city, 
59 Ind. 225. 

2. A city has no power to annex non-contiguous territory, and taxes as- 
sessed by the city and collected b}^ it on such territory must be returned when 
application is made under § 3157, 86 Ind. 587. Any citizen of the territory 
sought to be thus annexed may maintain an action for an injunction to restrain 
the annexation, but where only a natural and non-navigable stream intervenes 
between the territory sought to be annexed and the corporate boundary of the 
city, that alone does not constitute a barrier to the extension of the city limits 
over such territory, 104 Ind. 343. Where several pieces of platted territory do 
not all adjoin a city, but adjoin one another, and one of them adjoins the city^ 
they may all be annexed, 23 Ind. 525. 

3. The city has no power to annex unplatted territory, even with the con- 
sent of the owner, 108 Ind. p. 18 ; and an attempt to do so may be enjoined^ 104 
Ind. 343; 100 Ind, 443; 112 Ind. 344; and the collection of taxes thereon may 
also be enjoined, 55 Ind. 576; 99 Ind. 117; 112 Ind. 344, without averring that 
the tax duplicate is in the hands of the city treasurer, 104 Ind. 343; 100 Ind. 
443. See 72 Ind. 161. 

4. The legality of an annexation can not be tested by a quo ivarranto 
against the city officers fox exceeding their powers, 65 Ind. 492. 

5. Before the city can extend its limits over territory such territorv must 
have heen platted and recorded ; and if it was never legally platted, so that the 
plat is not entitled to record [as if it was not signed], the recording of it Avill 
not give the city authority to act. The word '•^ plaf^ here used is not applicable 
to out lots of a congressional section of land. The plat being void in the case 
referred to, an injunction was sustained to prevent the adoption of a resolution 
annexing the territory, 47 Ind. 274 ; 5 Ind. 547, 550 ; 100 Ind. 443. Subdivisions 
marked on the plat with the view to impress upon them the character of urban 
as distinguished from rural use, are to be regarded as lots within the meaning 
of this statute, 23 Ind. 525 ; 24 Ind. p. 173 ; 59 Ind. 396. 

6. A city can not prevent the incorporation of certain territory as a tozvn, 
by extending its boundaries over such territory, Avhere proceedings for its in- 
corporation are instituted before the board of commissioners of the county 
before a resolution for its annexation has been adopted by the city, 47 Ind. 274. 

7. The right to annex territory is not based upon the right of eminent do- 
main^ 55 Ind. 515; nor does it take from an owner any private property with- 
out due process of law, 55 Ind. 515. If the territory is such as the city has the 



§3196] CITIES. [272 

right to annex, the owner of it can not prevent the annexation, 59 Ind. 396; 99 
Ind. 117. 

8. The territory must be platted by the ozvner, and if platted by one not the 
owner it can not be annexed; nor can a husband plat his vjife's land, and the 
fact that the land that he assumes to plat was omitted from a previous plat made 
and acknowledged by her, can make no ditference, 112 Ind. 344. 



Resolution Annexing Territory. 

Resolved, that the following platted territory, contiguous to the present 
limits and territory of this city, known as Ristine's addition to this city, of 

which a plat is filed in the recorder's office of the county of , be and the 

same is hereby annexed to this city, and the jurisdiction of this city is hereby 
extended over the same, so as to incorporate the same within the limits of this 
city, to wit: YDesc7'ibe it by metes and hounds^ beginning zvith the city' s present 
boundary line^ 

The city clerk is hereby ordered to file a certified copy of this resolution in 
the recorder's office of the county of , and State of Indiana. 

Sec. 3196. Extension over contiguous lands — Action of council. 

85. The limits of any city may be extended over'any lands or con- 
tiguous territory, by the consent of the owner thereof in writing, 
and a resolution of the common council, passed by a two-thirds 
vote, extending the limits of such city over such lands or territory; 
which written consent and resokition shall be entered at length in 
the records of such city; and the common council shall cause a 
certified copy of both to be recorded in the recorder's office of the 
proper county. If any city shall desire to annex contiguous terri- 
tory not laid off in lots, and to the annexation of which the owner 
will not consent, the common council shall present to the board of 
county commissioners a petition setting forth the reasons for such 
annexation, and, at the sam.e time, present to such board an accu- 
rate description, by metes and bounds, accompanied with a plat of 
the lands or territory proposed or desired to be annexed to such 
city. The common council shall give thirty days' notice, by pub- 
lication in some newspaper of the city, of the intended peti- 
tion, describing in such notice the territory sought to be annexed. 

1. This and the next section are constitutional, 20 Ind. 272; 55 Ind. 515; 
and apply to all cases not covered by § 3195. 5 Ind. 547; 20 Ind. 272. At coju- 
mon larv authority existed to annex contiguous territory; but in this State it 
is wholly statutory, 55 Ind. 515. 

2. The statute is strictly construed^ 55 Ind. 515 ; 58 Ind. p. 484. T:\i.Qreasons 
for the annexation should be stated in the petition, and the map or plat should 
be verified^ but not the application, 20 Ind. 272 ; 32 Ind. 322; (sufficiency of ex- 
pression of desire to annex). 

3. The territory sought to be annexed must be cojitiguoiis to the territory 
of the city, 86 Ind. 587; but if one tract is contiguous to the city, and all the 
other tracts are contiguous to each other, that is sufficient, 87 Ind. 45; 108 Ind. 
14; 23 Ind. 525. 

4. The board of county commissioners has the exclusive po'cvcr to annex tin- 
platted territory, 104 Ind. 343; 100 Ind. 443; 99 Ind. 117; 47 Ind. 274; 55 Ind. 
576; 91 Ind. 541; 99 Ind. 117; but none to annex territory zvholly platted. It 
may, however, annex territory, both platted and unplatted, embraced in a single 
petition, 72 Ind. 161 ; 47 Ind. 274. The order of annexation, however, is con- 



2/3] ANNEXATION OF TERRITORY. [§319^ 

elusive, so far as the character of the land to be annexed is concerned; and the 
order of annexation can not be attacked on the ground that it is platted, 72 Ind. 
161; or the proceedings merely /;';'c^''/^/«;', 99 Ind. 117; or an insufficient peti- 
tion, loS Ind. 14. 

5. The territory to be annexed may be described in the petition by con- 
gressional sections and subdivisions, 55 Ind. 515. The ;p tat need not be filed with 
the petition, but may be at any time before final action of the board, even over 
objection of a remonstrant, 55 Ind. 515. The petition need not be fited at any 
specific period before the Jirst day of the session of the board at v/hich it is in- 
tended to present the matter of annexation, but thirty days' notice of the inten- 
tion to present the matter to the board must be given by the city, 55 Ind. 515. 
A survey made before the intention to annex is formed may be adopted, at 
least if the petition contains an accurate description corresponding with such 
survey, 55 Ind. 515. The presentation of the petition must be the act of the coun- 
cil^ and not of the individual members ofthe council, 55 Ind. 515. The proceed- 
ings should in some way show that it was the council as a body acting, — the act 
of the city The usual practice is for the mayor and councilmen to sign it (55 
Ind. 515); but this is not required by the statute, nor, evidently, does the 
supreme court consider it necessary, loS Ind. 14; 39 Ind. 373; 87 Ind. 45, In a 
collateral attach, it will be presumed that the plat showed the lands of the per- 
son objecting, and that such c»tc';/^r, which is not necessary, would not consent to 
the annexation, loS Ind. 14. Consent conferred after proceedings begun before 
the board, does not oust its jurisdiction, 108 p. 18. 

6. K petition is not faulty because it excepts from its /rrtj'<?r platted territory 
within the lines of a larger territory described, 87 Ind. 45. The sicjficiency of 
the reasons for the annexation stated in the petition is left to the board acting 
upon it. That the inhabitants ofthe territory sought to be annexed enjoy the 
advantages of city government and institutions, and ought, therefore, to share 
its burdens; that the highways should be properly graded and improved; that 
drainage may be provided, and the like, are sufficient, 87 Ind. 45. 

7. If some notice was given, its sufficiency can not be attacked collaterally, 
96 Ind. 143; 108 Ind. 14. The ptiblicatio?i is sufficient if it Avas made for thirty 
days before the first day of the term at which the petition is filed, excluding 
the first day of publication and counting the last one, which falls on the first day 
ofthe term, 87 Ind. 45. 

8. Acquiescejice on the part of a land-owner for a term of years, voting at 
city elections, building of school-houses and the improvement of streets within 
the limits of the annexed territory by the city, persons acting as members of 
the council elected from such territory, and the entering into a large indebted- 
ness by the city because ofthe increased amount of taxable property, will work 
an estoppel as to such land-owner to contest the validity of proceedings to an- 
nex that are of doubtful legality. In such a case the owner is guilty of laches, 
99 Ind. 117. And this is true, even though such land-owner has received no 
direct benefit from the improvements made by the city, and did not know dur- 
ing the period of acquiescence that the proceedings were void, 100 Ind. 443. 
But where the proceedings are by the council alone under § 3195 for the an- 
nexation of unplatted territory, a land-owner is not estopped to contest their 
validity on the ground of a ivant of jurisdiction, even though he voted and 
offered himself as a candidate at a city election, and unsuccessfully petitioned 
for street improvements in the annexed territory, 100 Ind. 443; 112 Ind. 344. 
Nor does the iact that a husband platted a tvife's land without her knowledge, 
and it was then annexed, bar her right to recover back city taxes paid, even 
though street improvements without her knowledge were made, and she exe- 
cuted conveyances of the lots as thus platted, believing at the time that they 
related to lots previously and legally platted hy her, 112 Ind. 344. 



Resolution on Presenting Petition. 

Resolved, by the common council of the city of , and State of 

Indiana, that the following petition be and is hereby adopted, and that it be 
18 



3196] CITIES. [274 



presented by this council to the board of commissioners of the county of , 

State of Indiana, to wit: 

To the Board of Co;n?nissioncrs of the County of .- 

Your petitioners, the common council of the city of , State 

of Indiana, represent to your honorable body that the following territory, 
which they desire annexed to said city, is unplatted, and contiguous to- said 
city, viz.: Beginning at the northwest corner of section thirteen, township 
eighteen north, of range four west, within said county and State, which is the 
southwest corner of the present territory of said city, running thence south one 
hundred and sixty rods, thence east three hundred and twenty rods, and thence 
north one hundred and sixty rods to the northeast corner of said section, which 
is the southeast corner of said city. 

A plat of said territory, of which the above is an accurate description, is 
herewith presented to your honorable body. 

Your petitioners assign as reason why said territory should be annexed to said 
city, that the same is thickly settled and requires better police surveillance than 
can be secured without municipal control ; that the highways run from the country 
south of it through said territory to said city, upon which there is much travel, 
requiring them, by reason of such amount of travel, to be kept in better repair 
than they are kept in ; that several streets of said city running south have no 
outlet, and none can be procured, though they are much needed by the public ; 
and that the inhabitants of said territory enjoy many or all the privileges of 
living within said city without paying any taxes therefor, although their lands 
are greatlv increased in value by Iheir proximity to the said city. 

Your petitioners hereby authorize the city attorney to present this petition 
to your honorable body, and pray that you will annex said territory to said city 
and extend the jurisdiction of said municipal corporation over said territory. 

[Sig-ned by a majority of the coiuicihncn.'\ 



It is also ordered that the city clerk giv2 notice of the intention of this 
council to present said petition \o said county board, by publication in the 
Daily Argus of this city for thirty days; to prepare a certified copy of said 
petition, accompanied by a copy of said notice and proof of publication, and 
place it in the hands of the city attorney, who is hereby directed to present the 
same, with the copy of 'said notice and" proof of publication, to said board of 
commissioners at their regular meeting in the month of , 18 — , and pro- 
duce such proof before such board as may be necessary to secure the annexa- 
tion to said city of the territory described in said petition. The city civil en- 
gineer is hereby directed to prepare an accurate plat of the lands and territory 
desired to be annexed to this city, to accompany said petition, and file the same 
with the city clerk by the next meeting of this council. 



Clerk's Certificate to Petition. 

I. X.'Z., clerk of the city of , cf the State of Indiana, hereby certify 

that at a regular meeting of the common council of said city, held in thecoun- 
cil chamber of said city on the day of , 18 — , the above and fore- 
going petition was duly adopted by said council, and ordered, -with the accom- 
panying map, hereto attached and marked " Exhibit A," of the territory proposed 
to be annexed, to be presented to the board of commissioners of the countv of 

, of the State of Indiana, by the attorney of said city; that the above is a 

full, true and complete copy of said petition, and the map therein referred lo 

which was approved by said council on the day of ,18 — , as adopted 

by said council, as appears from the records and files of said city. 

In testimony whereof, I have hereunto set my hand and the corporate seal of 

said citv, this dav of , 18 — . 

X. Z.. 
[Seal.] CIcir:. of the Cit:- of . 



2/5] ANNEXATION OF TERRITORY. [§3I9<^ 

Approval of Piat. 

Resolved, that the plat, filed with the city clerk by the city civil en- 
gineer on the day of , i8 — , of the territory proposed in the resolu- 
tion of this council, adopted on the day of , i8 — , pursuant to the 

order of this council, be and the same is hereby approved and adopted; and 
said clerk is hereby instructed to place the same in the hands of the city 
attorney. 

Notice. 

To Whom it 2\Iav Concern: 

Notice is hereby given that at the regular meeting of the board of 

commissioners of the county of , State of Indiana, the city of , of 

said State, will present a petition, by its duly authorized attorney, pursuant to a 

resolution adopted on the day of , i8 — , by its common council, 

authorizing the presentation of the same, for the annexation to, and the incor- 
poration withm the limits of said city, the following territory situate within 

the county of , and State of Indiana, viz.: [Set out the exact description 

contained in the petition. \ 

Bv order of the common council of the city of . 

Attest; A. B., 

C. D., Mayor of the City of -, 

Clerk of the City of . 

[Corporate Seal.] 

Proof of Publication. 



State of Indiana, Coujity of , ,?.<!■ ; 

L. M., being duly sworn, upon his oath says that he is the publisher of 

the Z>rt//y Argus, 2i daily paper printed and published within the city of , 

and State of Indiana, that the annexed notice was published for thirty consecu- 
tive days, excepting Sundays, in said paper, the first publication being , 

i8 — , and the last, , I'S — . 

L. M. 

Subscribed and sworn to before me, this day of . i8 — . 

rSeal.l X.Y., 



Notary Public. 



Consent of Land-owner to Annexation. 



To the Common Council of the City of .• 

I hereby consent that the following territory, or land, owned in fee 
simple by me, which is contiguous to said city, may be incorporated within the 
limits of and annexed to said city, and the jurisdiction of said city extend over 
said territory, viz.: 

{Describe it by metes and bou7ids.] 

A. B. 

Resolution on Consent. 

Whereas, A, B. has filed the following consent that certain territory of the 

county of , State of Indiana, owned by him, may be annexed to this city. 

to wit: {Set it out\\ and 

Whereas, this council finds as a fact that said A. B. is the owner in fee sim- 
ple of said territory, and that the same is contiguous to the limits and territory 
of this city ; theretbre, be it 

Resolved, by this common council, that said territory, to wit: {Describe //j, 

be and the same is hereby annexed to this city of ; the jurisdiction ot said 

city is hereby extended over said territory; the same is hereby made a part of the 



§ 3197] CITIES. [276 

territory of and incorporated within the limits of said city ; and the limits of said 
city are so extended as to correspond with the boundaries of said territory as above 
described, to wit: Beginning at, etc. [Describe the boundaries of the tract an- 
7iexed by commencing at a point in the corporate line of the city^ and returning 
to a similar point.'] The clerk is hereby directed to enter at length in the rec- 
ords of this city, said written consent of said A. B. and this resolution, and cause 
a certified copy of both to be recorded in the recorder's office of the county of 
— , and State of Indiana. 

Sec. 3197. Proceedings by county board. ^6. The board of 
county commissioners, upon the reception of such petition, shall 
consider the same, and shall hear the testimony offered for or 
against such annexation ; and if, after inspection of the map and of 
the proceedings had in the case, such board is of the opinion that 
the prayer of the petition should be granted, it shall cause an entry 
to be made in the order-book; specifying the territory annexed, 
with the boundaries of the same according to the survey; and they 
shall cause an attested copy of the entry to be filed with the 
recorder of such county, which shall be duly recorded in his office, 
and which shall be conclusive evidence of such annexation in all 
courts in this State. 

1. The board must either grantor refuse the prayer of the petition in toto; 
it can not annex only a part of the territory sought to be annexed, 55 Ind. 576; 
but if it erroneously annexes only a portion of the territory, the order can not be 
attacked collaterally, 96 Ind. 143. The order of annexation may, by the early 
decision, be attacked collaterally., and it is not conclusive, 58 Ind. 4S0; but such 
is not the rule of the later decisions, 72 Ind. 161; 76 Ind. 549; loS Ind. 14; espe- 
cially as to mere irregularities that could be successfully attacked on appeal, 
108 Ind. 14. 

2. Courts can not take cognizance of the exact location of city limits, 76 
Ind. 549. That may be shown by parol evidence, 86 Ind. 587. 

3. In a proceeding to enjoin it must be averred that the territory was 
neither annexed by the board, nor by a resolution of the city council, 72 Ind. 161. 

4. The board can only hear the proceedings at a regular session; at least 
the petition can not be filed at a ^/ec/a/ session and be then acted upon. If filed 
at a regular session, no doubt the proceedings could be continued to a special 
session and then acted upon, 72 Ind. 218. 

5. Formerly it was held that no appeal lay from the proceedings of the 
board, and for that reason such proceedings were critically examined, 39 Ind. 
159 ; 55 Ind. p. 582; 58 Ind. 480; 35 Ind. 51, 177 ; but afterwards it was held that a 
right of appeal was given by the general statute relating to appeals from a 
board of county commissioners, 76 Ind. 549; 99 Ind. 117; 90 Ind. 236; 91 Ind. 
541 ; 95 Ind. 245; and now it is given by statute, § 3243. 

6. A school-house erected by a township trustee upon territory annexed to 
a city, remains the property of the township, 37 Ind. 415; 60 Ind. 473 ; but where 
a town is first incorporated so as to include the school-house, it passes under 
the control of the city school trustees, 27 Ind. 465 ; and the title vests in the 
town, and the town is entitled to a conveyance of it from the township trustee 
for school purposes, 109 Ind. 559; 86 Ind. 582. 

7. Lots platted upon ground already within city limits are subject to taxa- 
tion as city lots, and need not be annexed, 61 Ind. 29. 

8. Taxes paid upon land illegally annexed can not be recovered back after 
six years from the time of payment cf each installment, 112 Ind. 344; 86Ind. 5S7; 
103 Ind. 526. 

9. The owner of agricultural land can not question the right of a city to 
tax such lands in an action to restrain the city and the board of commissioners 
from annexing contiguous territory, 55 Ind. 515. 



2/7] FIRE DEPARTMENT. [§§3198, 3199 

Commissioners' Order-Book Entry. 

Comes now the city of , of the State of Indiana, by X, L., her 

attornev, and files the following certified petition, to wit: 

[Set out the petitiofi and the clerk's certificate, \ 

And at the same time, said city files proof of the publication of the follow- 
ing notice, viz.: \Set out the iiotice and proof of publication^ by which it is 
shown to the satisfaction of this court, that notice of the intention of said city 
to apply to this court for the annexation of the tefritory, therein described, to 
said city was duly given, by pviblication in the Daily Argus ^ of said city, for 
thirtv davs previous to the first day of the present term of this court. And at 
the same time said city files a plat of the lands and territory proposed or desired 
to be annexed to said city. 

The court having heard the evidence, finds in favor and grants the prayer of 
said city, that the territory described in said petition and map is unplatted and 
contiguous to the present territory and boundary line of said city ; that the same 
ought to be annexed to and incorporated within said city ; and that the reasons 
lor the annexation of said territory as set forth in said petition are true. 

It is therefore ordered, adjudged, and decreed that the following territorj', 
described in said petition, situate within the county of , and State of In- 
diana, viz.: {Describe //], be and the same is hereby annexed to and incorpo- 
rated within the corporate limits of said city of , and that the boundary 

lines and the jurisdiction of said city are hereby extended around and over said 
territory as above described. 

The county auditor is ordered to file a certified copy of this order, accom- 
panied by said map, with the recorder of this countj^, and to file and preserve 
the original petition and proof of publication. The costs of this proceeding, 
taxed at % , are hereby adjudged against said city. 



ARTICLE 7 — FIRE DEPARTMENT. 



3198. Fire wardens. 32023. Exemption from juries and militia. 

3199. RegTiIation to prevent fires. 3202&. Act cumulative. 

3200. Fire engines and houses. 32021:. Exemption from city tax. 

3201. Power of chief engineer and assistants. 3203. Destruction of buildings. 

3202. Privileges of firemen. 

« 

[1867, p. 33. Approved and in force March 14, 1867.] 

Sec. 8198. iFire wardens. 72. The councilmen, by virtue of 
their office, shall be fire wardens, or the common council may ap- 
point one or more fire wardens ; and all fire wardens shall have 
power, at all reasonable hours, to enter into and examine all dwell- 
ings, out-houses, lots, and yards in their respective wards or in said 
city, to inspect all places wherein fire is used, and to ascertain how 
ashes are kept and disposed of 

Questions touching the removal of ashes have arisen in the following English 
cases: 2 M. & W. 677 ; i Exch. 845 ; 2 H. & N. 45 ; L. R. 2 Q^ B. Div. 145 ; L. 
R. 2 C. P. Div. 391. 

Sec. 3199. Eegulation to prevent fires. 73. The common council 
shall have power to regulate the construction of chimneys, hearths, 
ovens, the erection of stoves and stove-pipes, boilers and apparatus 
used in manufactories and in buildings, and cause the same to be 
removed or made secure when considered dangerous ; to compel 



§§ 3200, 320l] CITIES. [278 

owners and occupants of houses and buildings to make scuttles in 
the roofs thereof, and stairs or ladders leading to the same. 

See § 3106, clause 32, notes; and § 3155, notes. 

This section is valid, 35 Ark. 352. The city may prevent the storage of large 
quantities of straw Avithin the thickly populated parts of the city, 85 Ind.276. 

Sec. 3200. Fire engines and houses. 74. The common council 
may procure fire engines and all other apparatus necessary for the 
extinguishment of fires, and have the charge and control of the 
same, and shall provide engine and other houses for their preserva- 
tion and security; shall organize, from reputable citizens, fire and 
hook and ladder companies and companies auxiliary thereto, and 
make rules for their government and regulation, with such penalties 
for neglect and misconduct as shall be deemed proper. They may 
remove members of such companies, and appoint others in their 
stead. 

I See § 3106, clause 30. The city is not liable for a failure to furnish ade- 
quate fire engines; nor for failure to take any precautions against fires, 29 Ind. 
187; nor for the negligence of its fire department 87 Ind. 334. (See the many 
cases cited in this last citation;) 69 Pa St. 420 ; 19 Ohio St. 19; S.C.2 Am. R.368 : 
104 Mass. 87 ; 122 Mass. 344; 123 Mass. 311, S. C. 25 Am. R.90 ; 53 Mo. 159, S. C. 
14 Am. R. 444; 25 La. Ann. 390; 38 Conn 368; 69 Pa. St. 420, 8 Am. R. 272; i 
Black (U.S.) 39; nor for the acts of a volunteer association, 38 Conn. 225, S. C. 
9 Am. Rep. 395; 59N.H.79; 63 la. 447; 47N.J.L.406; 19S.C.4T2; 28W.Va. 
233- 

2. A citv has the inherent power, without a special statute authorizing it, to 
purchase fire apparatus, 106 Ind. 129; 38 Kans. 726; 16 Fed- Rep. 910. The 
purchase may be on credit, 60 Ind. 504 It may make a binding parol contract 
for such apparatus; but if the contract price exceeds fifty dollars, it must be in 
writing; but a resolution entered of record, accepting a written proposition, sat- 
isfies the statute of frauds, 107 Ind. 231. 

3. The city may purchase fire apparatus for vohcntcer fire companies^ 27 Vt. 
70 ; 19 Pick.4S5 ; or it may repair apparatus owned by such companies, 19 Pick. 
485; 37 Vt.40; or their engine houses, 28 Mo- 488; 12 Me. 403; 7 Cow. 349; 41 
N. J. L. 45. So it may accept a bequest for a fire engine, 9 Pa. 433. , 

4. An abandoned fire-engine house, rented for other purposes, can not be 
sold under execution upon a judgment against the city, 5 Bull. 684. 

Sec. 3201. Power of chief engineer and assistants. 75. The 
chief engineer shall have the superintendence of the fire depart- 
ment. He shall see that all apparatus for the extinguishment of 
fires, belonging to the city, is kept in proper order, and, from 
time to time, report to the common council the condition of the 
same, and the repairs or additions thereto to render the depart- 
ment efficient. He shall appoint a first and second assistant en- 
gineer, with the advice and consent of the common council, who 
shall act under his directions. Said engineer and assistants, when 
clothed with their proper badges, shall have authority to require 
any person present, and not attached to any fire company, to work 
in extinguishing the fire, or in aiding to save property from de- 
struction or .injury, in such places and in such manner as the said 
engineer or assistants shall direct ; and to order all bystanders who 
are unemployed, or whose assistance is useless, to remove to such 



2/9] FIRE DEPARTxMENT. [§§ 3202 3202<: 

distance as the said engineer or assistants may prescribe. Said 
engineer and assistants shall have all the power of police officers, 
during the continuance of a fire, to suppress disturbances, and to 
arrest any person who may commit any breach of the peace, or 
any depredation or injury to the property of another, or who shall 
refuse to obey any order or direction lawfully given by said en- 
gineer or his assistants, and to conduct the offender before the 
mayor, or other proper magistrate, or, if necessary, to commit 
him to the county prison or jail until a hearing can be had. 

1. The citj can not create afire board, and confer upon it the powers of the 
chief of the fire department, so as to prevent him from exercising them, lOO 
Ind. 15. 

2. An ordinance provided that any person who should refuse to obey an 
order at afire given by any oiBcer duly authorized, " may be arrested and de- 
tained in custody initil the fire is extinguished''' This ordinance was field un- 
constitutional, because the person arrested is deprived of his liberty without 
due process of law and because his right to a trial by jury is invaded, 16 Minn. 
431- 

Sec. 3202. Privileges of firemen. ^6. The engineer and assist- 
ants of the fire departments, fire wardens, and firemen, and mem- 
bers of all other auxiliary companies to the fire department estab- 
lished by the common council, shall have their names registered 
with the ckrk of the city; and his certificate of such registry shall 
exempt such persons, for the current year, from serving on juries 
in all courts, and in the militia, except in case of v/ar, invasion, or 
insurrection. 

1. For farther privileges of firemen, see § 3202(7. 

2. A city is liable to a fireman for a defect in its streets, whereby he is in- 
jured in driving to a fire. 96 Ind. 50; or by a defective fire engine, 81 Ind. 166; 
but not for a failure to suppress a manufactory of fireworks, under an ordinance 
forbidding it, in which a fireman assisting when it is on fire to put out such fire 
is injured, 117 Pa. St. 414; nor for falling walls negligently permitted to stand, 
117 Ind. 126; 12 La. Ann, 481. 

[i R. S. 1S52, p. 298. Approved May 13, 1S52, and in force May 6, 1853.] 

Sec. 3202^. Exemption from juries and militia, i. Active 
members of any fire company organized under the corporate an- 
thority of any city or town shall be exempt from the performance 
of militia duty in time of peace and from serving as jurors. [R. S. 
1881, §4901]. • 

Sec. 3202^. Act cumulative. 2. This act shall be taken as 
cumulative. [R. S. 1881, § 4902.] 

Sec. 3202^. Exemption from city tax. 3. The real and per- 
sonal property and the polls of active firemen of regularly organ- 
ized fire companies, who shall have done the duty of firemen for 
one year preceding the time of listing, to an amount not exceed- 
ing five hundred dollars, shall be exempt from the payment ofci;y 
or corporation taxes. [R. S. 1881, § 4I03-] 



§ 3203] CITIES. [280 

The mere fact that volunteer firemen render services in extingfuishinsf fires 
does not render the city liable to pay them for their services, 20 Fla. 100 ; nor 
is the city liable to a fireman illegally discharged by the chief, 63 Md. 336. But 
see 39 Ind. 373. 

[1S67, p. 33. Approved and in force INIarch 14, 1S67.] 

Sec. 3203. Bestruction of buildings. ']']. When any building 
in the city is on fire, or any building- adjacent thereto is liable to 
take and convey fire to other buildings, to the great destruction 
of property, it shall be lawful for the chief engineer, or engineer 
acting as such, with the concurrence of the mayor or any five 
councilmen, to take down, blow up, or destroy the same. And 
no action shall be maintained against any person therefor; but 
the person owning or having an interest in such building may, 
within three months thereafter, apply, in writing, to the common 
council to assess the damages sustained thereby; and the common 
council shall appoint three reputable freeholders to determine the 
amount of damages done to the property of the complainant by 
the destruction of such building. Such assessment shall be made 
under oath, and subscribed by the persons making the same, and 
filed with the clerk of the city within ten days from the date of 
their appointment; but the complainant or corporation may, with- 
in twenty days thereafter, appeal therefrom to the circuit court of 
the proper county. The damages awarded by the com.mon coun- 
cil, or by the judgment of such court, shall be added to the next 
annual levy, and collected with the general tax, and paid over to 
such claimant. 

1. The right to destroy buildings existed at common lav,-, and the owner 
was entitled to no compensation for their loss, 2 Ind; 3:;; 100 Ind. ^75; 97 U.S. 
659; 12 Coke Rep. 63, 13; i Dyer, 36^^; 4 D. .& E. (T. R.) 797 ; i ball. 337; 15 
A^in. Abr. title " Necessitv," pi. 8; 2 Kent Com. 338; 39 la. 57=5, S. C. iS Am. 
R. 46; 8 Met. 462; 18 Wend. 126; 17 Wend. 2S5; loi U. S. i6-;23 N.J.L. 9, 
590; 21 N. J. L. 248, 714; 120 U. S. 227 (military necessity); 2 Denio, 461 ; 50 
Tex. 614; 3 Cal. 69; i Cal. 355 ; 13 Minn. 38; 11 Cush. 433; 16 Gray, 297; 51 
Cal. 52; 33 Wis. 314. 

2. The chief engineer or the acting engineer must concur vrith the mavor 
or with five councilmen that it is necessary to destroy the building, in order to 
create a liabilitv on the citv under this statute ; and if the chief or mayor alone 
order the destruction, the city Avill not be liable, 5 Cush. 269. See 11 Cush. 433. 
The fact that the building was insured does not affect the right to recover, 24 
Wend. 668 ; 9 Paige, 568. 

3. The citv is not liable for propertv destroyed bv inohs^ 12 Ohio St. 37^; 
13 Blatchf. 289"; 13 B. Mon. 559; 16 B. Mon. 184. 



28i] firemen's insurance. [§g 3203^, 3203^5 



ARTICLE 7^.— FIREMEN'S INSURANCE. 

SEC. SEC 

3203a. Repoi"ts of foreign insurance compa- 3203X.'. Firemen assessed, 

nies— Tax. 3203/. Payment to board of trustees— Invest- 

3203^. Penalty for failure to report— Revoking- ment. 

license. 32037«. Beneficiaries — Examination. 

3203r. " Firemen^'s pension fund." 3203;/. Deficiency of fund, 

3203^ '• Board of tiremen's fund." 3^030. Pension rates. 

3203^. Election of board. 3203/. Act applies to former pensioners. 

320^. President and secretary — Record. 3203(7. How pensions paid 

3203_4^ Report of firemen. 3203/-. Exemption from seizure. 

3203/^ Report of taxes. 32035, Act does not repeal tax law applicable 

32037. County pays fund to city- treasurer. to insurance companies. 

3203^. Fines paid into pension fund. 

[1891,415. Approved and in force March 9, 1891.] 

Sec. 3203^. Report of foreign insurance companies — Tax. i. 

Every fire insurance company doing business in this State, and not 
organized under the laws of this State, shall, in the months of January 
and July of each year, report to the auditor of each county in the 
State, wherein there is a city having a fire department paid by said 
city, under oath of the president and secretary of such company, 
the gross amount of all receipts received by such company on 
account of insurance premiums for insurance upon property in said 
county for the six months preceding the last day of the last pre- 
ceding December and June, and of the losses actually paid during 
the same period, and shall, at the time ofmaking such report, pay into 
the county treasury of such county one dollar on every one hundred 
dollars of the excess of said receipts over and above said losses. 
Any fire insurance company which shall fail or refuse to render an 
accurate account of its receipts and losses, as herein provided, or 
to pay the required tax thereon into the county treasury shall for- 
feit for the benefit of said fund in said county, one hundred dollars 
for each day such report or payment shall be delayed, to be recov- 
ered in an action in the name of the State of Indiana on the relation 
of the auditor of said county in any court of competent jurisdiction. 
And in case of such failure or refusal of any such fire insurance 
company to make report or payments as herein provided, it shall 
be the duty of such county auditor, within ten days thereafter, to 
report such failure and refusal to the auditor of State, who shall, 
upon the receipt of such notice, forthwith revoke all authority or 
license heretofore granted to such defaulting insurance company 
to do business in tliis State, and no further authority or license to 
do business in this State shall be granted or issued to such insur- 
ance company until the county auditor aforesaid shall have certified 
to the auditor of State that such insurance company has fully com- 
plied with the provisions of this act. 

See firemen's insurance ca.se.s, 13 Q^ D.179; 3 N. Sess. Cas. 394; 13 Jur. 19^. 

Sec. 3203(^. Penalty for failure to report — Revoking license. 2. 

Any county auditor, knowing that any fire insurance company is 



§§ 3203<^ — 3203^] CITIES. [282 

doing business in any city in said county, having a fire department 
paid by said city, contrary to the provisions of this act, who shall 
fail for ten days after knowledge thereof to report such fact to the 
auditor of State, shall forfeit and pay for the firemen pension fund 
in said county for each day's failure after the expiration of said ten 
days, the sum of twenty-five dollars, to be recovered in an action 
brought in any court of competent jurisdiction by the board of 
trustees of the fire department of such city. And if the auditor ot 
State, after receiving notice from the county auditor of any county, 
that any fire insurance company is doing business in such county 
•contrary to the provisions of this act, shall fail or refuse forthwith 
to revoke the authority or license of such company to do business 
in this State, such auditor of State shall forfeit and pay for the 
benefit of the firemen's pension fund in said county the sum of 
fifty dollars for each day's failure, the same to be recovered in an 
action brought by said county auditor in any court of competent 
jurisdiction in Marion county. 

Sec. 32036. ''Firemen's pension fund." 3. The sums so paid 
into the county treasury of each county, as provided in g i of this 
act, shall be set apart and designated as a ** firemen's pension 
fund," and the same shall be held and disbursed for the purposes 
and objects, and in the manner provided for in this act. 

Sec. 320dd. ** Board of firemen's fund." 4. The regular fire 
committee of the common council, or the department of public 
safety, or other proper authority as now provided by law, or as 
hereafter may be provided by law, having supervision of, or con- 
trol over paid fire departments of the several cities of this State, 
and four other persons, members of the fire department in such 
cities, elected as hereinafter provided, and the successors of each 
of the above, shall constitute and be the trustees for the distribu- 
tion of the pension fund provided for in this act, and shall be 
called the "board of the firemen's fund." 

Sec. 3203c^. Election of board. 5. Six members of the fire 
department shall be nominated for such office of trustee in a con- 
vention to be composed of one delegate from each fire company, 
fire alarm telegraph company, and from the general office belong- 
ing to' the fire department of any such cities, and called by the 
chief of such fire department, and convened at least two weeks 
prior to the election of such trustees. That such election shall be 
held in the respective houses or headquarters of such fire com- 
panies, telegraph department, and general office, and be by ballot 
cast by the members of said fire department, between the hours 
of 9 o'clock a. m. and 6 o'clock p. m. on the first Tuesday of 
January in each and every year hereafter. That every such mem- 
ber shall be entitled to cast only one ballot, and no ballot shall 
contain the names of more than four persons, and the four persons 



283] firemen's insurance. [§ 3203^ 

receiving the highest number of votes shall be declared elected as 
such trustees, and hold their office until their successors are duly 
elected. That the officer in command of any such company, on 
the day of, and immediately after holding such election, shall can- 
vass, count, and certify in writing the number of ballots cast and 
the votes received by each candidate for the office of trustee. 
After signing such certificate said officer shall address and deliver 
the same to the chief fire engineer of said city, who shall deliver 
the same to the mayor of said city. That the mayor shall, within 
three days after receipt of such certificates, open the same and as- 
certain and determine the total number of votes so cast at said 
election for the different persons for the office of trustee, as re- 
turned by the said officer in command, and he shall issue certifi- 
cates of their election to the four perso.as elected as such trustees. 
In case of a tie vote being received by any two persons for the 
office of said trustee, such tie vote shall be decided by casting lots 
or in any other way wdiich may be agreed upon by and between 
the persons for whom such tie vote was cast. No election shall 
be set aside for want of formality in balloting by such members, 
or certifying or remitting the returns of any such election by said 
officer in charge. 

I. Each elector votes for four of the six nominees on one ballot. The Aus- 
tralian system does not apply to this election. 



Certificate of Election. 

This is to certify, That at an election duly held in the city of , 

and State of Indiana, on the day of , 18 — , for the purpose of 

electing four trustees for the board of trustees of the firemen's fund, that A. B. 
was duly elected to the office of trustee of said board, in and for said city, to 

serve as such for the term of one year from the day of , 18 — , and 

until his successor is elected and qualified. 

In witness whereof, I have hereunto set my hand and affixed the seal of 

the city of , this • day of , 18 — . 

[Seal.] Z. X., 

Mayor of the City of . 



Attest: 

X. Z. 

Clerk of the Citv of — 



Oath of Office. 

State of Indiana^ County of , .?.?.• 

I, A. B., do solemnly SNvear that I will support the constitution of the 
United States, and the constitution of the State of Indiana, and that I will 
faithfully and impartially discharge my duties as trustee of the board of trus- 
tees of the firemen's fund of the city of , and State of Indiana, accord- 
ing to law and the best of my ability. So help me God. 

A. B. 

Subscribed and sworn to before me, this day of , iS — . 

[Seal.] Z. X., 

M;ivor of the Citv of . 



§§ 3203/, 3203^] CITIES. 



Election Notice. 

Notice is hereby given that an election Avill be held on the 

day of , i8 — , between the hours of 9 a. m. and 6 p. m., in the city of , 

State of Indiana, at the following places : \_Name the places^ for the purpose of 
electing four trustees of the board of trustees of the firemen's fund of the city 

of , State of Indiana, 

Dated at , , iS— . R. X., 

Chief of the Fire Department 

of the City of . 

Election Return. 

This is to certify that at an election held on the day of , iS — , 

between the hours of 9 a. m. and 6 p. m., at the , in the city of , and 

State of Indiana, for the purpose of electing four trustees of the board of trus- 
tees of the firemen's fund of said city, the following ballots were cast, and votes 
received, for the persons named, to wit. 

A. B., 

CD., 

E. F., 

G. H., 

I- J-, 

K. L., 

Dated at . , iS— . 

L. X., 

Inspector. 

Sec. 3203/. President and secretary — Hecord. 6. The president 
of the fire committee, or the president of the pubhc safety, or the 
president of any other board of authority, which shall be at the 
head of such fire department, shall be the president of said board 
of trustees of the firemen's pension fund. At the first meeting 
of the said board of trustees they shall elect some one of their 
number, or the regular secretary of fire committee of said ci^y or 
of the department of public safety, as the case may be, as secre- 
tary of said board of trustees. It is hereby made the duty of the 
secretary to keep a full record of all the proceedings of the said 
board of trustees, and the board shall make all needful rules and 
regulations for its government in the discharge of its duty, and 
shall hear and determine all appHcations for relief or pensions un- 
der this act. 

Sec. 3203^. Eeport of firemen. 7. The president and secretary 
of said board of trustees shall, on the 30th day of June and the 
31st day of December of each year, transmit to the county auditor 
a return, under oath, stating the total number of firemen employed 
in the department under the supervision of said board. 

Report. 

To the Auditor of the Coutity of ; 

The undersigned, A. B., as president, and C. D,, as secretary of the board 
of trustees of the firemen's fund of the city of . State of Indiana, hereby 



285] firemen's insurance. [g§ 3203Z; — 32037 

report that the total number of firemen employed in the fire department of said 
city, on the 31st day of December, iS — , ^vas . 



A. B., 
C. D. 



Subscribed and sworn to this day of , iS- 



[Notarial Seal.] L. X., 

Notary Public. 

Sec. 3203/^. Report of taxes. 8. The county treasurer of each 
county shall, on the first day of January and July in each year, 
make out and deliver to the board of trustees of the fire depart- 
ment in each city in said county having a lire department paid by 
such city, a statement showing the name' of each fire insurance 
company which have paid taxes into the county treasury of such 
county as in this act provided, and the amount paid by each of 
such companies, and failing to do so, said county treasurer shall 
forfeit and pay, for the benefit of such firemen's pension fund in 
such county, the sum of five hundred dollars, and the same may be 
recovered in an action upon his official bond in any court of com- 
petent jurisdiction. 

Report. 

To the Board of Trustees of the Firemen's Fund of the City of : 



The undersigned, treasurer of the county of , and State of , 

hereby certifies that the following amounts have been paid into the treasury of 
said county from the first day of January to the first day of July, 18 — , by the 
persons named, to the credit of said fund, viz., American Fire Ins. Co. 



Dated at- , 18—, N. Y., 

County Treasurer. 

Sec. 8203?". County pays fund to city treasure?. 9. The county 
treasurer of each county shall, on the first day of January and 
July in each year, pay over to the city treasurer of each city in 
said county having a fire department paid by such city, their 
amount of the firemen's pension fund then on hand in said county 
treasury, and the city treasurer so receiving the same shall be the 
custodian thereof, and shall disburse the same as in this act pro- 
vided: Provided, That where the county treasurer is also ex officio 
treasurer of any city in said county, such county treasurer shall be 
the custodian of such fund. And provided fiirther, That where there 
are two or more paid fire departments in any county, the county 
treasurer shall distribute the fund received by him between them 
in proportion to the amounts annually paid out by each of said 
departments to its firemen. 

Sec. 3203/'. Fines paid into pension fund. 10. The director, 
person or persons having control and charge of the fire service in 
said cities may impose fines upon any member of the fire depart- 



§§ 3203/^, 3203/] CITIES. [286 

ment, in any such cities, by the way of discipline or punishment, 
detain and collect the same from the pay or salary of such mem- 
bers, and sucii fines, together with all rewards in money, fees, gifts, 
and emoluments that may be paid or given specially to said fire 
departments, or any member thereof, " except when allowed to be 
retained by such member, or given to endow a medal or other 
permanent or competitive reward," and all proceeds of suits for 
penalties for the violation of any provision of any statute of this 
State or ordmance of said cities, with the execution of which the 
said fire department, or any of its officers or members, is now or 
hereafter may be charged, and any license or other fees payable 
under the same, also all witness fees of every nature whatsoever, 
when the salary of any member of said fire department is not 
"affected" by his absence while serving as such witness, shall be 
paid to and received by the said city treasurer and applied by him 
to the said pension fund ; and the said board of trustees may take 
by gift, grant, devise, or bequest, any money, real estate, or per- 
sonal property, right of property, or other valuable thing, and such 
money, real estate, or personal property, right of property, or other 
valuable thing so obtained shall in like manner be paid to and ap- 
plied by such city treasurer to the said pension fund, and also to 
the use of such fund by deposit, investment, or profit, as herein- 
after provided, or as such board of trustees shall direct. 

Sec. 3203/6. Firemen assessed. 11. Every member of said fire 
department shall be assessed a portion of his salary, and such as- 
sessment shall not be less than one-half of one per centum, ormore 
than one per centum of his compensation, and all such assessment 
shall be applied to the pension fund : Provided, however, That in 
no case shall the assessment of any person exceed fifteen dollars 
{$1^) per annum. The board of pension trustees shall have dis- 
cretionary power to fix the rate of assessment within the limits 
herein prescribed. The secretary of the fire department shall 
place opposite the name of every member of the fire department 
on the pay-roll the amount of the assessment on each individual's 
salary, and the city treasurer shall monthly deduct from the salary 
of every member of the said fire department the sum set opposite 
his name, and shall deposit the same to the credit of the pension 
fund. 

Sec. 3203/. Payment to board of trustees — Investment. 12. The 

said board of trustees shall draw such portion of said pension fund 
from the treasury of such city as it shall deem advisable, and in- 
vest the same in the name of the ' ' board of trustees of the firemen's 
pension fund" in interest-bearing bonds of the United States, the 
State of Indiana, or any county in this State, or of said cities, or 
of any township, incorporated village, or other municipal corpora- 
tions in the said State of Indiana, or without the State when the 



28/] firemen's insurance. [§ 3203;;^ 

power to issue such bonds is derived from either general or special 
legislative authority. The president or secretary of such board 
shall collect the interest on all bonds, and place the same to the 
credit of the said fund. The said bonds shall, before the same are 
issued to the said board of trustees, be registered in the office of 
the treasurer of the United States or the State of Indiana, county, 
city, township, incorporated village, or other municipal corpora- 
tion in this State or other State issuing the same, and bear upon 
their face the printed or legibly written fact of such registry, to- 
gether with the book and page and date and place of such registry. 
The said board of trustees shall make report to the council of the 
condition of said pension fund on the first day of January in each 
and every year. 

Report. 

To the Common Council of the City of ; 

The board of trustees of the city of , State of Indiana, hereby 

make the following report, for the year ending December 31. 18 — • 

Amount on hand at last report . . % 

Amount of interest received since last report . 

Amount of fines and dues received since last report 

Amount received from treasurer of county 

Total % 

Amount paid X. A., pensioner , . . $ 

Amount paid L. T., pensioner 

Total $ 

Amount now on hand % 

Amount invested in United States registered bonds $ 

Amount invested in bonds of the State of Indiana 

Amount invested in bonds of the city of 

Amount uninvested 

Total $ 

All of which is respectfully submitted this day of , 18 — . 

By order of the Board of Trustees, of the Firemen's Fund, of the city of -. 

Attest: N. B., 

N. L., President. 

Secretary. 

Sec. S20Sm, Beneficiaries — Examination. 13. If any member of 
the said fire department of any such city shall, while in the per- 
formance of his duty, become or be found upon examination by a 
medical officer, ordered by the director, person or persons having 
charge or control of the fire department in such city, to be physic- 
ally, mentally, or permanently disabled so as to render necessary 
his retirement from all service in the said fire department, such di- 
rector, person, or persons having charge of said fire service shall 
retire such permanently disabled person from all services in said 
fire department, and the board of trustees of the pension fund 
shall authorize the payment to such permanently disabled person, 



§ 3203/2, 3203^] CITIES. [288 



monthly, from the pension fund, the sum provided in section 14 
of this act, according to the compensation and term of service in 
said fire department. When any member of said fire department, 
or' retired member on the pension fund thereof, dies from any 
cause whatever, and leaves a widow, or a child or children under 
sixteen years of age, the board of trustees shall authorize the pay- 
ment to such widow, while unmarried, and child or children un- 
der sixteen years of age, monthly, from the pension fund, the sum 
or sums provided in section 14 of this act, according to the com- 
pensation and term of service of such deceased member in said fire 
department; or if any deceased member shall liave a dependent 
mother or father, upon satisfactory proof that such mother or father 
was dependent upon said deceased member of the fire department, 
the board of trustees shall authorize the payment to such mother or 
father, monthly, from the pension fund, the sum provided in sec- 
tion 14 of this act, according to compensation and term of service 
of such deceased member in said fire department: Provided, liow- 
ever, That no pension shall be paid to the mother or father of a de- 
ceased member who leaves a dependent widow ; and if the widow 
of any deceased member shall re-marry, her pension shall cease. 

Sec. 3203;2. DeSciency of fund. 14. That if at any time there 
should not be sufficient money or bonds to the credit of the said 
pension fund to pay to each person entitled to the benefit thereof 
the full amount per month as hereinbefore stated, then, and in 
that event an equal percentage of said monthly payments shall be 
made to each beneficiary thereof, until said fund is so replenished 
as to warrant payment in full to each of said beneficiaries. 

Sec. 3203^. Pension rates. 15. The sums to be paid to perma- 
nently disabled members and the widows and orphans, or depend- 
ent mothers or fathers of deceased members, shall be as follows : 
Upon retirement he shall receive twelve-sixteenths of his salary 
per month, and in the event of his decease while in the service of 
the fire department or after retirement, the widow shall receive 
twenty dollars per month, and their children under sixteen years 
of age, six dollars per month ; those in the service of the paid fire 
department twenty-five years or over, shall upon retirement re- 
ceive thirteen-sixteenths of their salary per month, and in the 
event of their decease while in the service of the department or 
after retirement, their widow shall receive twenty-five dollars per 
month, and their children under sixteen years of age seven dollars 
per month; any member of such paid fire department who has 
been in the service of said paid fire department twenty-five years 
consecutively, upon making written application to the director, 
person or persons having charge of the iire service, at his own op- 
tion, may without medical examination be retired from all services 
in said fire department, and upon such retirement the board of 
pension trustees shall authorize the payment to such, monthly, 



2S9] firemen's IxsuRA^XE. [§§ 3203/, 3205^ 

from the pension fund, an amount equal to thirteen-sixteenths of 
his salary at the time of retirement. Any member of such fire de- 
partment who has been in the service of said fire department thirty 
years, the last twelve years consecutively, may, upon written appli- 
cation to the director, person or persons in charge of the fire serv- 
ice in such city, retire at his own option without medical exam- 
ination, and the board of pension trustees shall authorize the pay- 
ment to such member as retired, monthly, from the pension fund, 
a sum equal to thirteen-sixteenths of his salary at the time of his 
retirement. The pension of the dependents of such retired mem- 
bers shall be the same in case of death after retirement as pro- 
vided for dependents who die in the service or after retirement, but 
the member so retired without special disability shall always receive 
the same amount of pension as when he retired. In no case shall 
the amount of any pension exceed seventy-five dollars per month, 
except the pensioner shall have been in the service of said fire de- 
partment thirty years, the last twelve consecutively, and in that 
event they shall receive eighty dollars per month, when thirteen- 
sixteenths of their salary equals that sum, but no more. The pen- 
sion of the dependent mother or father of a deceased member who 
dies in the service of the fire department, shall be the same as that 
provided for his widow. That any member who may be discharged 
from the fire department after having served not less than twen- 
ty-two years consecutively, shall be placed on the pension roll at 
ten-sixteenths of their salary at the time of his discharge, provid- 
ed such discharge is for any other offense than dishonesty, intoxi- 
cation, or a criminal act, and in the event of the death of such 
member after retirement, if he leaves a widow or dependents, they 
shall receive the amounts provided for the dependents of those in 
sections 12 and 14 of this act. In no case shall the board of trus- 
tees depart from the provisions of this section in authorizing the 
payment of such pensions. 

Sec. 3203/. Act applies to former pensioners. 16. This act shall 
apply to all persons receiving pensions from the firemen's pension 
fund of such cities who have been placed on such pension fund un- 
der any former law or laws, except widows or children of deceased 
members of such fire departments, who shall receive the same as 
they were receiving at the time of the passage of this act; and, in 
any application for pension now pending before the board of trus- 
tees, the board herein created may, in its discretion, place such de- 
pendents in the class of pensioners, as provided in sections 12 and 
14 of this act. 

Sec. 3203.7. How pensions paid. 17. The payment of said pen- 
sions shall be made by drafts, drawn by the order of said board of 
trustees, signed by the president and countersigned by th.c said 
secretary, but nothing in this act contained shall render any pay- 
ment of such pension obligatory upon the said board of trustees 



§§ 3203^ — 3204] CITIES. [290 

or any member thereof, or chargeable as a matter of legal right, 
and the said board of trustees may at any time order such pension 
to be reduced or ceased, and a decision of the board on all applica- 
tions for relief or pensions shall be final and conclusive, and not 
subject to review or reversal except by such board. 

Sec. 3203r. Exemption, f^'om soiznre. 18. No portion of the said 
pension fund shall, either before or after its order of distribution by 
the said board of trustees to such disabled members of said fire de- 
partm„ents, or to the widov/ or guardian of child or children, or to 
the dependent mother or lather of a deceased or retired member of 
such department, be held, seized, taken, subjugated or detained or 
levied^ on, by virtue of any attachment, execution, injunction, writ, 
interlocutor or other order decree, or any process or proceedings 
v/hatever issued out of or by any court in this State for the pay- 
ment or satisfaction, in whole or in part, of any debt, damages, 
claim, demand, judgment, fine or amercement of such member or 
his said widow, or guardian of child or children, or of the depend- 
ent mother or father of any deceased member ; but the said fund 
shall be sacredly kept, secured, promoted and distributed for the 
purpose of pensioning the persons named in this act, and for no 
other purpose whatever. Provided, The said board m.ay expend an- 
nually not to exceed fifty dollars from such fund for the necessary 
expenses connected therewith. 

Sec. 32035-. Act does not repeal tax law applicable t3 insurance 
companies. 19. Nothing in this act contained shall be construed as 
repealing or altering, in whole or in part, any law of this State now 
in force requiring the payment by insurance companies of taxes in- 
to the treasury of the State of Indiana. 



ARTICLE S — CITY COURT. 

SEC. si:c. 

3204. Election of jiidg-e. 3213. Chang-e of venue. 

3205. Commission — 0;ith — Bontl. 3214. Trial. 

3206. Style and jurisdiction. 3215. Ne%v trials. 
3206(7. Criminal jurisdiction. 3216. Appeals. 

3207. Civil causes, when for trial. 3217. Execution. 

320S. Seal. 3218. ^Marshal's and constable's duties — Fees 

3209. Court of record — Effect of judijment. 3219. Judge's fees. 

3210. Process and service. 3220. judge pro tempore. 

3211. Rules — Po\vers of judge. 5221. Judge may practice lav.-. 
321 J. Sittings of court — Records — Transcript, 

[1S91, p. 24. Approved and in force February 20, 1S91.] 

Sec. 3204. Election of judge, i. The legal voters of any city, 
having a population of over five thousand inhabitants, may, at any 
regular or special election, elect a city judge, if the common council, 
by proper order duly entered of record, shall have so directed. 
Such judge shall have the qualifications required of the judj^e of the 
circuit court; and shall hold h s office for tlie term of four )^ears, 
and until his successor shall be elected and qualified. 



291] CITY COURT. [§§3205,3206 

The adoption of a resolution brings the city under this law. The judge 
elected under it holds his office vmtil his .'successor is elected and qualified; but 
a second resolution is not necessary for the election of such successor, 85 Ind. 
471. 

Resolution. 

Whereas, the city of has a population of over six thousand in- 
habitants, therefore, it is hereby ordered and resolved tiiat there be elected at 
the election of city officers held on the firstTuesday in May of this present year, a 
city judge, to hold his office for the term of four jears, and until his successor 
shall be elected and qualified as required by section one of an act to establish 
courts in cities having a population of five thousand inhabitants. 
[See 85 Ind., p. 472.] 

[1S75, P'45- Approved March 12, 1875, and in force August 24, 1875.] 

Sec. 3205. CommisGion — Oath — Bond. 2. When the mayor of 
such city shall certify to the governor that said city has a popula- 
tion of over six thousand inhabitants, and that a person (naming 
him) has been duly elected to the office of city judge, the govern- 
or shall issue his commission to such judge, as in like cases. But 
before such judge shall enter upon the discharge of his duties, he 
shall take and subscribe to the oath of office as required by judges 
of the circuit courts, and shall execute his bond, with two or more 
responsible freehold sureties, payable to the State of Indiana, in 
the penal sum of five thousand dollars, conditioned that he will 
faithfully, and to the best of his ability, perform the duties of his 
said office, and that he will pay over to the persons entitled thereto 
all moneys that may come into his hands by virtue of his office; 
which bond shall be filed in the office of the clerk of the circuit 
court of such county. 

[1891, p. 24. Approved and in force February 20, 1G91.] 

Sec. 3206. Style and jurisdiction. 3. The style of such court 

shall be "The court of the city of , " according to the name 

of the city, and shall have original concurrent jurisdiction with jus- 
tices of the peace and with city mayors in all matters criminal and 
civil of which justices of the peace or mayors have or may hereafter 
have jurisdiction. And shall also have original concurrent juris- 
diction with the circuit court in civil causes where the amount 
in controversy does not exceed five hundred dollars, except in 
actions of slander, libel, foreclosure of mortgage on real estate, 
or where the title of real estate is in issue, excepting all matters 
relating to the settlement of decedents' estates, [the] appointment 
of guardians and all matters connected therewith. Such court shall 
be governed, so far as may be, by the laws, rules, practice and 
pleadings governing proceedings in the circuit courts of the State, 
except as in this act is otherwise provided. 

T. The city judge formerly had no jurisdiction to arraign, try, and commit 
a person to jail for a violation of a city ordinance; the mayor alone possessed 
that jurisdiction ; nor could the city confer upon such city judge jurisdiction by 



§§ 3206^ — 3210] CITIES. [292 

its ordinances, 50 Ind. 569. This court has jurisdiction to try an action for a 
recission of a contract, 76 Ind. 434. 

2. If the court erroneously determines notice to a fartv to be sufficient, that 
determination can not be collaterally impeached, 85 Ind. 471. 

[1S75, p. 49. Approved March 12, 1S75, and in force August 24, 1875.] 

Sec. 3206^;. Jurisdiction of criminal cases. 4. Such city court 
shall also have original concurrent jurisdiction with the circuit 
court and justices of the peace in the trial of misdemeanors upon 
affidavit, and any prosecuting attorney or his deputy, or any attor- 
ney at law may appear before such court, and prosecute the pleas 
of the State, and shall be entitled to the fees allowed to prosecuting 
attorneys in such cases. 

The above section is omitted from the Revised Statutes of 1881. , 

[1S91, p. 24. Approved and in force February 20, 1891.] 

Sec. 3207. Civil causes — When for trial. 5. All civil causes 
triable in the city courts, shall stand for issue and trial when 
summons shall have been served on the defendant three days or 
publication had thirty days; but the defendant may appear without 
process and confess a judgment for any sum not exceeding one 
thousand dollars. 

[1875, p. 49. Approved March 12, 1875, and in force August 24, 1875.] 

Sec. 3208. Seal. 6. Such judge shall provide a seal for such 
court, which shall contain on the face, the words * * city court of 

, Indiana" (filling the blank with the name of the city and 

county). A description of such seal, together with an impression 
thereof, shall be spread on the records of said court. 

[1891, p. 24. Approved and in force February 20, 1891.] 

Sec. 3209. Court of record — Effect of judgment. 7. City courts 
shall be courts of record, whose jurisdiction in criminal cases shall 
extend throughout the limits of the county wherein they are situ- 
ated, and in civil cases throughout the limits of the township or 
townships wherein such city is situated ; and all its judgments, 
decrees, orders, and proceedings shall have the same force and 
effect as those of the circuit court, except that the same shall not 
be a lien on real estate, otherwise than as is provided by taking tran- 
script, and the same shall be enforced in the same manner as liens 
by transcript from justices of the peace in similar cases. 

[1875, p. 49. Approved March 12, 1S75, ^^^ in force August 24, 1875.] 

Sec. 3210. Process and service. 8. Theprocessof said court shall 
be issued by the judge, and shall have the seal affixed and be at- 
tested, directed to the sheriff or any constable, or to the marshal of 
such city, served and returned, and be in form as is or may be pro- 
vided for process issuing from the circuit court. 



293] CITY COURT. [§§ 32 1 1 32 I 3 

Sec. 3211. Rules — Powers of judge. 9. Such judge shall have 
full power and authority to make and adopt rules and regulations 
for conducting the business of said court not repugnant to the laws 
of this State ; and shall have all the powers incident to a court of 
record in relation to attendance of witnesses, the punishment of 
contempts, and enforcing its orders, and to issue commissions for 
taking of depositions in cases pending in said court. Such judge 
shall have full authority to administer oaths, to take and certify 
acknowledgments of deeds and other instruments, to solemnize 
marriage, and to give all necessary certificates for the authentica- 
tion of the records and proceedings in said court. 

Sec. 3212. Sittings of court — Records — Transcript. 10, Such 
court shall be held in such city, at such place as shall be provided 
therefor; and shall, at all usual business hours, be deemed open 
for the transaction of any business that may be [brought] before 
it. Such judge shall be his own clerk, issue all process, and shall 
keep a true and correct record of all proceedings had before him. 
The common council of such city shall provide, for the use of said 
court, well-bound order-books, judgment-dockets, and fee-books, 
in which said judge shall record all orders, judgments, and decrees, 
and sign the same, and enter a minute of all judgments and de- 
crees in the judgment-docket, and shall keep a true record of all 
fees in the proper fee-book in the same manner as such records 
are kept by clerks of the .circuit courts. Such judgments may 
only become a lien upon real estate, by filing in the office of the 
clerk of the circuit court a transcript of such judgment; and upon 
the recording of such transcript in the order-book of said circuit 
court, such judgment shall become a lien, the same as judgments 
rendered by such circuit court; and execution may issue on such 
record of such transcript, in the same manner and for the same 
reasons as executions are issued on transcripts from the dockets of 
the justices of the peace ; and no real estate, or any interest therein, 
shall be sold on any writ issued from said city court. 

The city judge can not charge the city with the rent of his office, although 
he held court there because the city had provided no court-room for his court; 
nor can he make a contract with the city to pay him rent, he being an officer 
of the city prohibited from making a contract with the city by § 3104, 79 Ind. 166. 

Sec. 3213. Change of venue. 11. Changes of venue may be 
taken from such court, for such causes and in such manner and 
upon such terms as is provided for changes of venue in causes be- 
fore justices of the peace; and in causes of which justices of the peace 
have jurisdiction, the same shall be sent to some justice of the 
peace competent to try the same; but in cases of changes of venue 
of all other cases, the same shall be sent to the circuit court of the 
county, where the same shall be entered upon the docket of such 
court, and shall be there tried as if originally instituted in said 
court. 



§§3214—3217] CITIES. [294 

Sec. 3214. Trial. 12. All issues of fact pending in such city 
court shall be tried by the judge, unless either party demand a 
jury ; which jury shall consist of six qualified voters of the county 
(unless the party calling for the jury demand twelve jurors), to be 
summoned by any constable, sheriff, or city marshal, by venire 
issued by the judge. 

Sec. 3215. S'ew trials. 13. New trials may be granted by 
such judge at any time within ten days after rendering judg- 
ment, according to the usages in the circuit court, notice of the 
motion therefor having been given to the opposite party, unless 
such motion be made in his presence or in the presence of the 
agent or attorney who conducted his suit ; and when a new trial is 
granted, the judge shall set a day therefor, and shall cause at least 
three days' notice to be given to the party against whom such new 
trial has been granted. 

A new trial may be waived under this section, 93 Ind. 112. 

Sec. 3216. Appeals. 14. Any party may appeal from any final 
judgment or decree of such city court to the circuit court of such 
county, within thirty days from the rendition thereof, in the same 
manner in which appeals are taken from the judgments of justices 
of the peace ; and such appeal shall be deemed to be properly 
taken if the same would be good if taken from a justice of the 
peace : Provided, hozvever, That when a party shall have acquired 
any lien by virtue of any transcript filed and recorded, as herein 
provided, from which an appeal is taken, such lien shall be deemed 
as continued in force until such cause shall be tried and entered of 
record in the circuit court. 

1. In those counties having a superior court^vcn appeal lies from the city 
court to them. This was so decided m the superior court of Cass county, 
in 1876. 

2. Perhaps on appeal where the amount in controversy is less then two 
hundred dollars, the rules as to costs touching appeals from a justice of the 
peace govern; but not if the amount in controversy is over that amount. In 
the latter instance, although the amount of the judgment is greatly reduced, the 
winning party recovers his costs, 70 Ind. 434. 

Sec. 3217. Execution. 15. Such judge shall issue executions 
and orders of sale on all final judgments and decrees as follows : 
On judgments and decrees by confession within four days from the 
rendition thereof; on all other judgments and decrees, at the expi- 
ration of ten days from the rendition thereof, unless the same be 
stayed as provided by law ; and in such cases he shall issue such 
executions or orders of sale at the expiration of such stay, unless 
the judgment-plaintiff or his attorney shall otherwise direct. All 
orders of sale and all executions, when the amount exceeds three 
hundred dollars, shall be directed to the sheriff of the county; and 



205] CITY COURT. [§§ 32 1 8 3221 

all other executions may be directed to any constable of the 
county or marshal of such city. 

Sec. 3218. Marshal's and constable's dnties — Feee. i6. Such 
judge may require the marshal of such city or his deputy or any con- 
stable to attend his court during the progress of any trial, to pre- 
serve order, to serve process, and to perform the general duties of 
bailiff to his court. In all cases of which justices of the peace 
would have jurisdiction, such marshal or constable shall be allowed 
such fees as are allowed by law in such cases in justices' courts ; in 
all other cases, they shall receive such fees as are allowed by law 
to the sheriff for like services in the circuit court, to be collected as 
other costs of suit. 

Sec. 3219. Judge's fees. 17. In all cases of which justices 
would have jurisdiction, such judge shall be entitled to, and receive 
the same fees as are allowed by law to justices of the peace ; in all 
other cases he shall be allowed one dollar for trial, and a docket- 
fee of one dollar and fifty cents in each case, and also such fees as 
are allowed to the clerks of the circuit court for like services ; and 
in cases of jury trials, he shall receive two dollars; and if such 
trials shall last more than one day, he shall have two dollars per 
day during the continuance of such trial, after the first day, to be 
collected as other costs of suit in the courts of this State ; and for 
any other official services such judge may perform, he shall receive 
such compensation as is usually allowed by law in such cases. 

Sec. 3220. Judge pro tempore. 18." If such judge shall desire 
to be absent from such city for more than twenty days, he may 
appoint any attorney-at-law of said county as a judge /r^ tempore ; 
which appointment shall be in writing, and spread on the records 
of said court. Such judge /r^* tempore having first taken the proper 
oath, and said oath being properly recorded, may, during the ab- 
sence of said judge, perform all the duties of such judge, and be 
entitled to the fees that the judge would be entitled to. Such 
judge shall be responsible, on liis bond, for all the acts of such judge 
pro tempore: Provided, That such appointment shall be valid for 
sixty days only, and no longer. 

Sec. 3221. Judge may practice law. 19. There being no stated 
salary provided for such judge, he may be permitted to practice law 
in such cases as can not come before him. 



SEC. 




SEC. 


322Ifl. 


Board of commissioners of inetropoii- 


3221//. 




tan police. 


3221 Z. 


3221^^ 


Appointing- powers of board. 


3^2y. 


322i(:. 


President and secretary. 


3221^-. 


322IC^. 


Rules and regulations." 


3221/. 


3221^. 


Power and authority — Custody and 






control. 


3221W1. 


3221/. 


Powers of oificers and members. 


3221 «. 


3221^. 


Expenses charged upon city. 


32210. 



2,221a] CITIES. [296 



ARTICLE 8.4— METROPOLITAN POLICE. 

Service of municipal process. 
Compensation — Fees — Rewards. 
Interfering and obstructing — Penalty. 
Additional patrolmen. 
Challenging, influencing, or soliciting 

electors. 
Bond. 

Marshal's fees. 
La^vs repealed. 

[1S91, p. 90. Passed over the Governor's veto, and in force ^Nlarch 4, 1891.] 

Sec. 3221^:. Board of commissioners of metropolitan police, i. In 

all cities having an enumeration of children between the ages of 
six and twenty-one years, of fourteen thousand and over, as shown 
by the official returns of such enumeration made by the several 
county superintendents of this State to the superintendent of public 
instruction for the year 1890, there shall be estabhshed within and 
for said cities a board of metropolitan police to consist of three 
commissioners, to be appointed by the governor, secretary, treas- 
urer, and auditor of State, or a majority of them. The said com- 
missioners to be so appointed shall be of a good moral character, 
sober and discreet, who are citizens of the State of Indiana, and 
shall have resided in said city at least five years next preceding 
their appointment, no more than two of whom shall be of the same 
political party ; one of said commissioners to serve until the first 
Tuesday of January, 1S92, one to serve until the first Tuesday of 
January, 1893, and one to serve until the first Tuesday in January, 
1894, and the term of their successors to be for three ^^ears, and 
each of said commissioners shall be subject to removal by the gov- 
ernor, secretary, treasurer, and auditor of Stat^\ or a majority of 
them. Before entering upon their duties they shall each take and 
subscribe an oath of office before the clerk of the circuit court of 
the county within which such city is located, and shall also take and 
subscribe before such clerk the further oath or affirmation, that in 
any and every appointment or removal to be by them made, to or 
from the police force, created and to be organized by them under 
this act, they shall, in no case and under no pretext, appoint or re- 
move any policeman, officer of police, or other person, because of 
any political feeling held by such policeman, officer, or other per- 
son, or for any other cause or reason than fitness or unfitness of 
such person, in the best judgment of said commissioners, for the 
place to which he shall be appointed, or from wdiich he may be 
removed, and the said oath shall be recorded and placed among 
the records of said court. Said commissioners shall each give bond 
in the penal sum of five thousand dollars, payable to the State of 
Indiana, conditioned for the faithful and honest discharge of their 
duties, which bond shall be approved by the governor, secretary, 
treasurer, and auditor of State, or a majority of them. The salary 
of the board of metropolitan police commissioners of such [cities] 



297] METROPOLITAN POLICE. [§§ $22 1(^, 322 1<: 

city shall be fixed by the governor, secretary, treasurer, and audi- 
tor of State, or a majority of them, which salary shall not exceed 
six hundred dollars each per annum, payable monthly out of the 
treasury of such cities. 

1. This section is valid except that part requiring five j'ears' residence, 121 
Ind. 514. Employment of counsel by police board, 2 Ohio C.C. 406. 

2. This and the following sections are repealed so far as they apply to a city 
of 50,000 or more and less than 100,000 inhabitants. Acts 1891, p. 467. 

[1883, p. 89. Passed over the Governor's veto, and in force March 5, 18S3.] 

Sec. 3221^. Appointing powers of board. 2. The said board of 
metropolitan police commissioners shall have power to appoint a 
superintendent of police, captains, sergeants, detectives, and such 
other officers and patrolmen as they may deem advisable. Said 
captains, sergeants, detectives, and such other officers and patrol- 
men, to be appointed equally between the two leading political 
parties of said city. Said commissioners shall not have power to 
appoint m.ore than one patrolman for each ten hundred inhabitants 
in such city. Such superintendent, captain, officers, and patrol- 
men shall receive such compensation as the commissioners shall 
determine : Provided, That the compensation for a superintendent 
shall not be less than one thousand dollars nor more than fifteen 
hundred dollars per annum : that the compensation for a captain 
shall not be less than seven hundred dollars nor more than one 
thousand dollars per annum : that the compensation for a sergeant 
shall not be less than six hundred dollars nor more than eight 
hundred dollars per annum : that the compensation for patrolmen 
shall not be less than five hundred and fifty dollars nor more than 
seven hundred and thirty dollars per annum. The compensation 
for all other officers and employes shall be fixed and determined 
by the commissioners, as in their judgment will be reasonable, and 
to promote good government in such cities. All persons so ap- 
pointed shall serve during good behavior, and shall be of good 
moral character, and be able to speak the English language. Such 
commissioners shall have power, for cause assigned on a public 
hearing, and on due notice, according to rules to be promulgated 
by them, to remove or suspend from office, or for a definite period 
deprive of pay any officer or member of such police force (except 
that detectives may be dismissed at any time by said commission- 
ers) : and they shall have power to make general and special rules 
and regulations for the government and discipline of said force, and 
to make and promulgate general and special orders to said force, 
through the superintendent of police, who shall be the executive 
head of the force. 

That part of this section requiring the appointment to be made from differ- 
ent political parties is void, 121 Ind. 514. 

Sec. 3221r. President and secretary. 3. The said commissioners 
shall appoint one of their number to act as president, who shall be 



§§3221^ — 3221^] CITIES. [298 

ex officio a member of the board of health of such city, and they 
shall appoint some person not a member of the board to act as 
secretary and property clerk, who shall give bond to said commis- 
sioners in an amount and with sureties to be approved by said com- 
missioners, conditioned for the safe keeping by, and his rendition 
upon the order of the commissioners, of all money and other prop- 
erty which shall come into his hands by virtue of his office, and he 
shall receive such compensation annually as may be determined by 
said commissioners, not to exceed one thousand dollars per annum, 
and hold his office at the pleasure of the commissioners. 

Sec. 3221<^. Eules and regulations. 4. The qualifications, enu- 
meration, and distribution of duties, and mode of trial and removal 
from office of each officer and member of said police force, shall be 
particularly defined and prescribed by rules and regulations of the 
commissioners of police. 

Sec. 3221<?. Power and authority — Custody and control. 5. Said 
commissioners shall, as soon as they shall have been appointed and 
qualified, assume and exercise the entire control of the police force 
of such city, and shall possess full and exclusive power and author 
ity over the police organization, government, appointment, and 
discipline within the city. It shall have the custody and control 
of all public property, including station houses and city prisons, 
patrol wagons, books, records, and equipments belonging to the 
police department. All existing police boards, police officers, 
police forces, created and maintained by the ordinances or resolu- 
tions of the board of aldermen or common council of such city, 
are hereby abolished, to take effect upon the organization of the 
board of metropolitan police commissioners of such city. 

Sec. 3221/ Powers of cMoers and members. 6. The officers and 
members of such metropolitan police force shall possess all the 
common law and statutory powers of constable, except for the 
service of civil process. 

Sec. 3221^. Expenses charged upon city. 7. It shall be the duty 
of the board of aldermen and board of common council of such 
city as shall have two such boards, and of the common council of 
such city where but one of such boards exist, to provide, at the 
expense of such city, all necessary accommodations within such 
city limits, for station houses, to furnish the same, to warm and 
light the same by day and night, and to provide food for person or 
persons detained in any of said station houses, when such food is 
deemed necessary for such person or persons by the officer in 
charge. Also to provide for payment, monthly, of the pay-rolls 
of the officers, members, and employes of such board of metropol- 
itan police commissioners, upon the certificate of the president and 
secretary of such board as to the correctness of the sam^e; also, for 
such necessary office expenses, record-books, stationery, printing. 



299] METROPOLITAN POLICE. [§§322l/^ 3221/' 

« 

telegraphing, badges, clubs, furniture for rooms, and for the pres- 
ervation, repair, and cleaning of the buildings and rooms used by 
the commissioners, for advertising, fuel, light, board of prisoners, 
it being the intention and meaning of this section that the necessary 
expenses incurred in the execution of criminal process for offenses 
charged to have been committed in such city, by the board of met- 
ropolitan police commissioners, and the maintenance of the police 
department hereby created within such city, shall be a charge to 
such city. 

Sec. 3221//. Service of iiLiinicipal process. 8. The memibers of 
the metropolitan police force shall have the exclusive power, and 
it shall be their duty, to serve all process within such city issuing 
from the mayor or city judge's court of such city, and all the duties 
now performed by the city marshal or his deputy in serving writs, 
executing orders of said court, attending said court, conveying 
prisoners to and from the county jail or station houses of such city, 
for arraignment on trial before said court, or conveying prisoners 
to the house of correction or workhouse, reform school, or county 
jail, or other place of punishment and imprisonment, under the 
judgment, sentence, or order of process of said court, shall be per- 
formed by members of said metropolitan police force; and the office 
of city marshal of such city is 'hereby abolished; and the duties of 
such office shall hereafter be performed by the superintendent of 
the metropolitan police force of such city, or by the captains or 
sergeants of police, under his direction. 

Sec. 32212. Compensation — Fees — Hewards, 9. No officer or 
micmber of such metropolitan police force shall receive, for any 
service rendered by him in discharge of any police duty, or as 
witness in any case before the mayor or city judge for any duty 
performed as bailiff of such court, any fee or compensation what- 
ever, except the regular fixed per dieui or yearly allowance made 
for his services as officer or memiber of such police force. Any 
rewards received by any officer or member of such police force shall 
be turned over to the secretary of said board of commissioners for 
the support of the metropolitan police, as in this act provided. 

Sec. 3221;'. Interfering and obstructing — Fenalt]?-. 10. Any per- 
son or persons, or corporation, or common council, or other mu- 
nicipal, township, county, or state officer or officers, who shall in 
any manner interfere with or interrupt the board of metropolitan 
police commissioners of such city, in any act of theirs, while in 
the legal discharge of their duties, as provided in this act, or of 
the police force herein authorized to be created, or shall prevent 
such board or force from discharging their duties, as defined in 
this act, shall, upon conviction before the mayor or city judge, or 
before the circuit or criminal court of said county, be fined not 
less than one hundred dollars nor more than one thousand dollars ; 



§§ ^22lk 322I?/2] CITIES. [300 

to which may be added imprisonment for not less than ten days 
nor more than ninety days, for each separate offense. 

This section is valid; but an ordinance covering the same ground is invalid 
under § 3066a, 115 Ind. 581. 

[1891, p. 90. Passed over the Governor's veto, and in force March 9, 1891.] 

Sec. 3221/&. Additional patrolmen, ii. The commissioners, 
whenever it shall seem to them discreet, may, on the apphcation 
of any person or persons, showing- the necessity thereof, appoint 
and swear in any number of additional patrolmen to do duty at 
any place within said city, at the charge and expense of the person 
or persons by whom the application may be made; and the patrol- 
men so appointed shall perform duty only at the place designated 
by said commissioners. They shall continue in office, at the pleas- 
ure of said commissioners, for a term not exceeding one year, 
shall be subject to and obey the orders, rules, and regulations of 
said commissioners, and conform to the general discipline of the 
police force of such city, and to such special regulations as may 
be made by such commissioners for their government; and the 
persons so appointed may be removed at any time by the commis- 
sioners. The commissioners may, upon emergency, with the written 
consent pf the governor, secretary, treasurer, and auditor of State, or 
a majority of them and the mayor of said city, appoint such number 
of special patrolmen as they may deem advisable ; but such special 
patrolmen shall serve for not exceeding seven consecutive days, 
unless their employment for a longer period shall be approved of 
by the board of police commissioners of such city, and the said 
special patrolmen shall be paid in the same manner as herein pro- 
vided for the regular police force. 

[1883, p. 89. Passed over the Governor's veto, and in force March 5, 1889.] 

Sec. 3221/. Chaiieng-ing, influencing, or soliciting electors. 12. 
It shall be unlawful for any patrolman or other member of said 
force, while on duty, to solicit any person to vote at any gen- 
eral or special election, for any candidate or candidates for office, 
or to challenge any voter, or in any manner attempt to influence 
any elector at such election, or to be a delegate or candidate to 
any political convention, or to solicit votes for any candidate for 
any delegate to any such convention. And any patrolman or oth- 
er member of said force so offending shall be fined in any sum not 
less than ten dollars nor more than fifty dollars, and be dismissed 
from the service. 

Sec. 3221;;/. Bond. 13. The superintendent, captains, and other 
officers of said force shall each give bond in the penal sum of 
from one thousand dollars to three thousand dollars, to be deter- 
mined by the commissioners, conditioned for the faithful discharge 
of their several duties. 



30l] HUMANE INSPECTOR. [§§322l;2 3221^ 

•Sec. 3221;/. Marshals' fees. 14. The fees fixed and allowed to 
city marshals shall be taxed and allowed, in all cases where the 
arrests are made or process served by any of the police force of 
said cities, in favor of said city, and shall be collected in the same 
manner as other costs are collected, and shall be paid into the city 
treasury of said city by the officers or party, or person collecting 
the same, every three months. 

Sec. 3221^. Laws repealed. 15. All laws and parts of laws 
coming in conflict vv'ith this act be and the same are hereby re- 
pealed. 



ARTICLE S/j'.— HUMANE INSPECTOR. 

SEC. SEC. 

3221/. Humane inspector— Salary. 32215. Pa^v of inspector. 

3221'^. Humane society may demand appoint- 3^^i^. Powers of inspector. 

ment of inspector. 3221?^. Files affidavit when statute violated. 

322ir. Inspector's duty. 32211'. Laws repealed, 

[1S89, p. 135. Approved and in force March 5, 1889.] 

Sec. 3221/. Humane inspector appointed — Salary. i. In all 

cities having a population of 29,000 inhabitants, according to the 
United States census of 1880, and having boards of police com- 
missioners in charge and in control of the police departments of 
said city, there shall be appointed by the said boards of police 
commissioners, as other officers of said police force are appointed, 
an inspector who shall be known as the humane inspector of said 
police force. Said inspector shall be appointed as other members 
of said force are appointed, at a salary of not less than the salary 
paid the sergeant of said police force, and said appointment shall 
be made by the board of police commissioners as other appoint- 
ments by them are made in accordance with section second of this 
act. 

Probably the legislature refers to the metropolitan police act of 1S89; but 
that act was declared void by the supreme court, 118 Ind. 426, which had the 
eftect to leave the metropolitan police act of 1883 in force, 121 Ind. 514. This 
law may be held to apply to the act of 1883, §§ 3221^ to 3221c 

Sec. 3221^, Humane society may demand appointment of inspect- 
or. 2. Whenever, in any city having the control of its police 
department under a metropolitan board of police commissioners, 
there shall be any regularly incorporated society or organization for 
the enforcement of the humane laws of the State, and whenever 
such society, through its authorized president and board of direct- 
ors shall, in writing, demand the appointment of such humane in- 
spector as provided for in the first section of this act, then it shall 
be the duty of said police commissioners, within thirty da}'s after 
the receipt of the petition of the president and directors of said 
humane society to appoint, in accordance with their rules and in 
conformity with this act, said inspector. 



§322ir — 3221^] CITIES. [302 



Sec. 3221r. Inspector's duty. 3. It shall be the duty of said 
inspector, after his appointment, to attend exclusively to the detec- 
tion and arrest of persons violating the humane statutes of the 
State: Providing, however. He shall be under the control and dis- 
cipline of said board of police com-m.issioners and its officers as 
other officers and patrolmen of said police department. 

Sec. 322I5. Pay of inspector. 4. The pay of said humane 
inspector shall be provided as the pay of other members of the 
metropolitan police department is provided. 

Sec. 322U. Powers of inspector. 5. Said humane inspector shall 
have the same power and be under the same restrictions as other 
peace officers of the State. 

Sec. Z221u. Files aiSdavit when statute violated. 6. Whenever 
any violation of the humane statutes, or any other statute, shall 
come to the knovv'ledge of said inspector he shall at once, under 
the direction of the president of the humane society, if said so- 
ciety be duly and regularly incorporated, file an affidavit before the 
nearest magistrate charging the person so violating said statutes 
v/ith said violation. 

Sec. 322I1;. Laws repealed. 7. All laws and parts of laws in 
confliction with this act shall be and the same are hereby repealed. 



ARTICLE 8C— DRAINAGE. 

SEC. SEC. 

3221Z. City may establish drains. ^22idci. Notices. 

322ia«. Proeeed'ingsin circuit court — Remon- 7,22iee. Act liberally construed. 

strance. 3221^. Repairs. 

T,22\bh. Appeal — Establishment. T)22igg. Report of commissioners. 

T,22icc. Construction. 2>^2ihJi, Agreement to assessment. 

[1891, p. 304. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 3221^. City may establish drains, i. Whenever the com- 
mon council of any city shall find it necessary, for the successful 
drainage of said city, to construct any drain as an inlet or as an outlet, 
leading into or out of said city, they shall cause a survey of said pro- 
posed inlet or outlet to be made and platted, therein showing the com- 
mencement, course, distance, terminance [terminus], depth, width, 
and whether open or covered; also the names of the owners of said 
lands without said city that will be affected thereby, described in 
tracts of forty acres, according to fractions of government survey, 
or less tracts, when they exist, together with a description of any 
highway that will be benefited by said inlet or outlet. Said sur- 
vey and plat shall be made by stations of not more than one hun- 
dred feet. Said city shall also cause an estimate of benefits and 
damages of the lands without said city to be made in favor of and 
a-^ainst said lands or the owners, including the benefits to said city, 
and the benefits to any highway affected thereby. Said city shall, 



303] DRAINAGE. [§3221^ 

at least three days before making such estimates of benefits and 
damages, notify in writing the owners of said affected lands, and 
also when any public highway will be benefited said city shall 
notify the trustee of the township in which said highway is located, 
that, on a day and hour named in said notice, that said city, by a 
committee of three disinterested householders or freeholders of said 
county, to be selected by said city, will be on said lands, and then 
and there view the said proposed inlet or outlet, and the lands 
affected thereby, and that said owners or any of them are requested 
to be present, with a right to be heard for or against any assess- 
ment that shall be made or proposed to be made against said lands. 
Said committee shall have power to adjourn from time to time, by 
openly announcing said adjournment, and the time and place to which 
said adjournment is made. When said committee shall have com- 
pleted said estimates of benefits and damages, including benefits to 
said city, said committee shall report the same, in writing to said 
city mayor, duly subscribed and sworn to as being, in the opinion 
of said committee, just, fair and equal by and between all the 
parties, including any estimate of benefits to any highway without 
said city that will be affected thereby. Upon the return of said 
report said common council shall approve of said survey and said 
report, if it be found to be substantially correct, and cause a record 
of said approval to be duly entered of record in the journal of said 
city. It shall thereupon be lawful for said city, by order of its 
council, to file a petition in the circuit court of the county in which 
said city is situated, therein setting forth that such inlet or outlet 
is necessary to effectually drain said city; that the survey, plat and 
assessments of benefits and damages are, as said council believes, 
correct, just and fair between the parties interested in such drain- 
age. Such petition shall be signed by a majority of the members 
of said council, to which shall be attached a certificate of the mayor 
of said city, showing that the petitioners are members of said 
council, and that they constitute a majority thereof, and which 
certificate shall be attested by the seal of said city and the signature 
of the clerk of said city; that said petition shall be conclusive of 
every fact herein required to be alleged, except as to [the] assess- 
ments of benefits or damages, which shall h^ prima facie QonoXw^w^ 
thereof. Such petition shall be sufficient to give the court jurisdic- 
tion [over] of all the lands therein described without said city to be 
affected by said proposed drainage, and power to fix a lien thereon 
for such sum or sums as may be found just and equitable, and to 
adjudge any damage found to be due any remonstrant, and to 
determine the rights, liabilities and equities of each and every 
person or persons, [corporation or] corporations affected thereby. 

NECESSARY STEPS IN THEIR ORDER. 

1. Resolution for a survey, § 32212-. 

2. Survey and report of engineer, §§ 3221, 32212. 

3. Appointment of appraisers or committee, § 3221.2-. 



3221^] 



CITIES. 



[304 



4. Notice to appraisers of appointment, § 32212-. 

5. Notice to land-owners, § 32212^. 

6. Report of appraisers or committee, § 32212. 

7. Approval of report, § 32212-. 

8. Petition to circuit court, § 32212:. 

9. Notice to land-owners ot filing the petition in circuit court, § 3221^^. 
10. Decree establishing drain and reference to countj drainage commis- 
sioner for construction, 6 322iaa. 



Resolution for a Survey. 

• 
Resolved, that the city civil engineer be and he is hereby ordered to 
make a survey for a ditch extending from near the corner of Pine and Walnut 

streets of this city westw^ardly to Dry creek, county of , State of Indiana, 

which survey shall be accompanied by a plat showing the commencement, 
course, distance, terminus, depth, width, and whether said ditch should be open 
or covered; also the names of the owners of the lands without the city that will 
be affected thereby, described in tracts of forty acres, according to fractions of 
government survey, or in less tracts when they exist, together with a descrip- 
tion of any that will be benefited by said ditch. 

Resolved, also, that in the opinion of this council an outlet for the water ac- 
cumulating at and in the vicinity of the intersection of said streets is necessary 
to effectually drain said city. 

Surveyor's Report to Council. 

To the Common Council of the City of .• 

Pursuant to your order I have made a survey and plat of the ditch de- 
scribed herein and in the accompanying plat, which it is proposed to construct ; 
commencing at a point 100 feet east by 33 degrees north of the northeast cor- 
ner of lot 6 of D. M. Purman's addition to the city of , county of , 

and State of Indiana, with station i, thence as follows, to wit: 



No. of 
Station 


Direc- 
tion. 


Dis- 

tance. 


Width at 
Bottom 


Width at 
Top. 


Depth. 


Grade. 























































. 


















Total 

No. 




Total 
Dis. 








Total 
Grade. 



Said proposed ditch will pass through the following described tracts of land 
situated without the limJts of said city and in said county, owned by the persons 
designated, to wit: 



Owner. 


Description. 


No. of 
Acres. 


Stations. 


L. X. 
X.L. 


N. W.i^ N. W.i^ S. ii,T.24N.,R. 4E. 
N. E. i^N. W. i^S. ii,T.24N., R. 4 E. 


40 
20 


14 to 28 
29 to 42 



















305] DRAINAGE. [^3221^ 

That so much of the Yountsville public highway as lies between the corporate 

limits of said citv and said Dry creek in township, will be benefited by 

the construction of said proposed drain. Said drain should be covered from 
station i to 49 and open from station 50 to 122, the point at which it ends in the 
bed of Dry creek. 

All of which is resDectfully submitted this day of , iS — . 

A. B., 

City Civil Engineer. 

Appointment of Appraisers. 

Resolved, that C. D., E. F. and G. H., three disinterested householders 
and freeholders of this county, and non-residents of this city, be and they are 
hereby selected and appointed a committee to appraise the benefits and dam- 
ages that will be caused by the proposed construction of the drain beginning 
near the corner of Pine and Walnut streets, and extending westwardly to Dry 
creek, as surveyed and described in the report of the city civil engineer made 

to this council on the day of , 18 — . Said committee will meet 

at the residence of L. N. on the day of , 18 — , at 10 a. m., for the 

purpose aforesaid. 

Notice of Appointnnent. 

To C. Z>., E. F. and G. H.^ greeting: 

You are hereby notified that at a regular meeting of the common 

council of the city of , State of Indiana, you were appointed a committee 

of three to assess the benefits and damages that will be caused by the construc- 
tion of a ditch beginning near the corner of Pine and Walnut streets in said 

city and running in a westwardly direction to Dry creek, county of — , 

State of Indiana, more particularly described in a report and a plat filed there- 
with, made to the common council of said city on the day of- , 

18 — , by the civil engineer of said city, which report and plat can be ob- 
tained by you upon application to the undersigned. You will meet at 10 a. m. 

on the day of , 18 — , at the residence of L. N., for the purpose of 

assessing said damages and benefits, and will hear such persons as are inter- 
ested and desire to be heard. 

In testimony whereof, I have hereunto set my hand and the seal of said citv 

this day of , 18 — . 

[City" Seal.] L. X., 

Clerk of City of . 

Marshal's Return. 

Served the within notice upon the within named C. D., E. F. and G. 

H. by giving them a certified copy thereof on the day of , 18^ — . 

R. U., 
City Marshal. 

Notice to Land-owners. 

Notice is hereby given to L. N., trustee of township, county 

of ,and State of Indiana, and M.O., H. A. and T.B., that CD., E.F. and 

G. H. have been selected and appointed as a committee by the city of , 

of said State, to assess the damages and benefits that will be occasioned by the 
construction of the proposed drain to run from near the corner of Pine and 
Walnut streets of said city westwardly to Dry creek, as described in the svn-vey 
and report of the civil engineer of said city, made to the common council. 

thereof on the day of , iS — ; and that said commissioners will 

meet at 10 a. m. on the day of , iS — , at the residence of L. N., 

and proceed to estimate the amounts of benefits and damages. 

[City Seal.] L. X., 

Clerk of the Citv of . 



3221^] 



CITIES. 



[306 



Marshal's Return. 

Served the within notice upon the persons and the township trustee 
therein named by giving them a certified copy thereof on the day of 



Report of the Committee. 



R. U., 

City Marshal. 



To the Mayor of the City of .• 

The undersigned, a committee appointed by the common council of 

said city, on the day of , 18 — , to assess the benefits and damages 

occasioned by the proposed construction of a ditch beginning near the inter- 
section of Pine and Walnut streets in said city of , State of Indiana^ and 

running in a wcstwardly direction to Dry creek, county of , and State of 

Indiana, a more particular description of which is contained in the report and 

plat of the civil engineer of said city, made to said council on the day 

of , 18 — , hereby report that they met at the residence of L. N. on the 

, 18 — , at 10 a. m., pursuant to the notice of the clerk of said 



day of 

city, and proceeded to examine the lands hereinafter described, to hear all par- 
ties interested therein, and assessed the damages and benefits as hereinafter 
designated, viz: 



Names. 


Description. 


No. 
Acres. 


Amount 
Damages. 


Amount 
Benefits. 


L. X. 
X.L. 


In • County. 

N. W. 1^ N. W.i^ S. II, T. 24 N., R. 4 E. 
N.E.i^N.W.i^ S.ii,T.24N.,R.4E. 


40 
40 


$25.00 


$50.00 























Benefits to the Yountsville public highway in 



-, township, of said county, 



from the corporate limits of said city to said Dry creek, $238.00, and to the city 

of , $1,200.00. All of which is respectfully submitted this — — day of 

, 18-. 



CD., 
E. F., 
G.H. 

State of Indiana^ County of ,>?.?.• 

We, C. D., E. F. and G. H., do solemnly swear that the above and fore- 
going appraisements and assessments are, in our opinion, just, fair and equal, by 
and between all the parties interested, including said city and the estimate of 
benefits to said public highway without said citv that will be affected thereby. 

CD., 
E. F., 
G.H. 



Subscribed and sworn to before me, 
r Seal.] 



this 



day of 



-, 18— . 

L. X., 

Notarv Public. 



Journal Entry of Approval. 



Resolved, by the common council of the city of , and State of 

Indiana, that the report of C D., E. F. and G. H., a committee appointed to 
assess the benefits and damages occasioned by the construction of a ditch from 
near the intersection of Pine and Walnut streets of this said city to Dry creek, 

county of , and State of Indiana, be and the same is hereby approved, 

and that the survey of said proposed drain made by the civil engineer of this 



307] 



DRAINAGE. 



[§3221. 



-, iS— , be and 



citv, reported to this council by him on the da}' of - 

the same is hereby also approved, and both of said reports are hereby adopted. 

And the city attorney is hereby directed to tile a petition in the circuit 

court, setting forth that an outlet for the waters near the intersection of said 
streets is necessary to etlectually drain said city, and to take such other steps as 
are necessary to carry out the design and object of said proceedings. 



Petition to Circuit Court. 



In the 



Circuit Court, 



Term, 18—. 



In the Matter of the Petition of the City of — 

To the Honorable Circuit Court: 

Your petitioner, the city of , of the county of 



for a Drain. No. — . 



Indiana, respectfully shows that on the 



, and State of 

day of , 18 — , it, by a resolu- 
tion of its common council, directed its civil engineer to make a survey for a 
drain beginning near the intersection of Pine and Walnut streets of said city, 
and running thence in a westwardly direction to Dry creek, in said county, for 
the purpose of obtaining an outlet for the waters accumulated near the inter- 
section of said streets; that said civil engineer made said survey and made a 

report thereof, accompanied by a plat thereof, to said council on the day 

of , 18 — , showing the commencement, course, distance, terminus, depth, 

Avidth, and that it ought to be an open ditch in part and closed in part; also 
showing the names of the owners of the lands situated without said city but 
within said county that would be affected by its construction, which lands were 
described in tracts of forty acres, according to fractions of government sur- 
vey, and in less tracts when they existed, together with a description of the 

Yountsville public highway situated in township benefited thereby, 

which survey was made by stations of not more than one hundred feet, as fol- 
lows: Beginning at a point 100 feet east by 32 degrees north of the northeast 

corner of lot 6 of D. M. Purman's addition to the city of , county of 

, and State of Indiana, thence as follows, viz.: 



No. Station. 


Direction. 


Distance. 


Width at 
Bottom. 


Width at 
Top. 


Depth. 


Grade. 

















Until it reached Dry creek in said county, a distance of feet. 

That on the day of , 18 — , said council appointed C. D., E. F. 

and G. H., three disinterested householders and freeholders of said county, 
non-residents of said city, as a committee to make an estimate of the benefits 
and damages to the lands without said city that would be affected by the con- 
struction of said drain, and appointed a time and place for their meeting, due 
notice of which time and the place of which meeting was given in writing bv 
the clerk and marshal of said city to all the land-owners hereinafter named, 
vv'hich names were also included in the survey aforesaid described. That said 
commissioners met at the time and place named in said notices, and after hav- 
ing viewed the premises and heard such evidence as was offered, on the 

day of , 18—, made a written report, under oath, to the mayor of said 

city, showing that the following described tracts of lands without said citv and 
within said count}-, owned by the persons named, would be benefited or "dam- 
aged in the amounts given, viz.: 



§3221^^] 



CITIES. 



L308 



Owner. 


Description. 


Xn. of 
Acres. 


Amt of 
Damages. 


Amt. of 
Benefits. 


L. X. 
X. L. 


N. W.14 X. W. I4 S. ii,T.24X., R. 4 E. 
N. E. i^N. W.14 S. ii,T. 24N., R. 4E. 


4» 


.$25.00 


.$50.00 
















.... 





Also, that so much of the Yountsville public highway as lies between the 

corporate limits of said city and said Dry creek, in township, of said 

county, would be benefited by the construction of said drain in the sum of 
.00 and said city in the sum of ,$1,200,00. That upon the day of 



-, after the return of said report, the common council of said city ap- 
proved said survey and said report, and caused a record of said approval to be 
duly entered of record in the journal of said city. 

And your petitioners aver that said drain is necessary to eifectually drain 
said city ; that the survey, plat and assessments of benefits and damages are, 
as said council believes, correct, just and fair between the parties interested in 
said drainage. 

Wherefore, your petitioners pray that said drain be established, that said 
assessments be approved, and said drain be ordered constructed. 

I. H., 
H. I., 
J.K., 
K.J., 
L. M., 
M.L. 

Members of the Common Council of the City of — 



State of Indiana, hereby certify that 



State of Indiana^ County of — , 

I, L. S., mayor of the city of — 
the above named petitioners, to wit: I. H., H. I., J. K., K. J., L. M. and M. L., 
are members of the common council of said city, and that they constitute a ma- 
jority thereof. 

In testimony whereof, I hereunto set my hand and cause the seal of said city 
to be affixed 

Done at said citv of , this day of , 18 — . 

[ City SeaL] ' L. S., 

Mavor. 
Attest: 

L. U., 

Clerk of the Citv of . 



Sec. S221aa. Proceedings in circuit court — Remonstrance. 2. 
Whenever the petitioners shall file their petition with the clerk of 
the circuit court, they shall fix and note thereon the date fixed 
for docketing thereof, and [if] it shall be made to appear to the 
court, that notice has been given by publication for twenty days 
of the proposed motion, to docket said petition, therein giving the 
names of the owners of said lands to be affected thereby, and the 
day set for docketing said petition, thereupon the court shall order 
said petition docketed as an action pending therein. Every per- 
son owning lands to be affected by said proposed drain, including 
the trustee of any township in which is a highway that may be 
affected thereby, shall have three days after docketing said petition 



309] DRAINAGE. [§ 3221^^ 

to file any motion, demurrer, remonstrance or objection he may- 
have to the form and sufficiency of said petition. After the expira- 
tion of said three days the court shall consider said motion, de- 
murrer, remonstrance or objection, and if the court find said peti- 
tion defective and not amendable, it shall dismiss said proceedings 
at the costs of the petitioners. But if the petition is amendable, 
without material injury to parties objecting, the court shall give 
the petitioners a reasonable time in which to amend the same, 
upon such terms and in such manner as the court may order. 
If the court shall find said petition sufficient, it shall deny said 
motion, and overrule such demurrer, remonstrance or objection. 
That either party may except to the ruling of the court as in 
other civil cases. All objections to said petition not taken within 
said three days, shall be deemed waived : Providing further, That 
if any person interested in any benefits or damages shall, within 
said three days, remonstrate against the assessments of benefits 
and damages as set forth in said petition, said person or persons 
shall file in said court his or iheir remonstrance, showing one or 
more of the following facts, to wit: 

First. That said assessment is too high and disproportionate 
to other lands affected thereby, or are disproportionate to the ben- 
efits assessed against said city. 

Second. By any person whose lands are assessed for benefits, 
that certain other specified tract or tracts of land are assessed too 
low, according to benefits secured. 

TJiird. By any person or persons whose lands are assessed, 
that the same are not affected, nor will they be benefited by said 
proposed drainage. 

Fourth. By any person to whom damages are assessed, that 
the same are inadequate. 

Said remonstrance shall be signed by each and every person 
joining therein, and filed in said court. Thereupon it shall be the 
duty of said court to order a re-appraisement of benefits and dam- 
ages, according to the issue tendered by said remonstrance, and 
shall appoint three good and true men of judgment and discretion 
and not in any way related to or affected by said proposed drain- 
age, and resident householders or freeholders of said county, who 
shall, under the order of said court, fixing the time and place of 
the meeting of said committee, proceed in accordance with said 
order to view the line of said proposed ditch, and the lands to be 
affected thereby, and shall fix, determine and assess any or all of 
the benefits or damages to the owner or owners of said lands, and 
the benefits against said city, which assessments shall be made on 
actual view of said lands, and shall, under the order of said court, 
report the same in writing, duly verified and sworn to, as being, 
in the opinion of said committee, just, fair and equitable between 
the parties interested in said proceedings. 



§3221^^] 



CITIES. 
Indorsement. 



[310 



The petitioner sets the 
within petition. 



day of 



18 — , for docketing the 
R. L., 

Attorney' for Petitioner. 



Drainage Notice. 



-, of the county of , 

circuit court for the 



Notice is hereby given that the city of 

and State of Indiana, has filed a petition in the 
drainage of that portion of said city situated in the vicinity of the intersection 
of Pine and Walnut streets thereof. It is believed that such drainage can be 
best and most cheaply accomplished by a ditch commencing near the intersec- 
tion of said streets and running thence in a general westwardly direction 
until it shall reach Dry creek in said county; and that such drainage will affect 
the following lands situate in said county and the owners thereof, viz.: 



Owner. 


Description. 


No. of 
Acres. 


L. X. 

X. L. 

R. Z. Bruner, trus- 
tee of tp. 

of said county. 


N. W. 1^ S. W. 1^ S. II, T. 24 N., R. 4 E. 

N.E. 14N. W. 1^ S. ii,T.24N., R. 4E. 

All that part of the Yountsville public highway 
situated between the corporate limits of said 
city and said Dry creek. 


40 
40 



Notice is also given that on the 



day of 



18 — , the day set by 



indorsement on said petition, a motion will be made by said city in said court 
to docket said petition, and for such further proceedings as the court may de- 
cree. 

Dated , 18—. 

The City of ■ 



[City Seal.] 
[Proof of publication should be made by the affidavit of the printer.] 



Per S. R., 

Clerk of the City of 



Remonstrance. 



In the 



Circuit Court 



In the Matter of the Petitio7i of the City of ■ 



— Term, 18 — . 
for a Drain. No. — . 



The undersigned, X. L., hereby shows to the court that he is the owner 
of the following described real estate situated without said city, but within the 

county of , and State of Indiana, to wit: The N. E. \^ N. W }/^ Sec. 11, 

T. 24 N., R. 4 E., containing 40 acres, described and assessed in said petition 
of said cit}", and he hereby remonstrates against said assessment for the follow- 
ing reason, to wit: 

(i) That said land is assessed with $600.00 benefits, which is too high an as- 
sessment and is disproportionate to all the other lands assessed and described 
in said petition, which are assessed with benefits in the sum of $8,100.00. 

(2) or, That the lands without said city affected by said proceedings are as- 
sessed in the aggregate sum of $6,200.00 benefits, Avhile said city is assessed 
Avith only $2,500.00 benefits ; that lands so without should be assessed only in 
the sum of $4,000.00 benefits and said city with $4,700.00 benefits. 

(3) or, That the land above described, owned by your remonstrator, is as- 
sessed with $168,00 benefits, while the N. E. 3^ S.'W. V^ Sec. 11, T. 24 N., R. 
4 W., 40 acres, owned by L. X., is assessed with only $22.00 benefits; while in 
fact vour remonstrator's land, above described, should be assessed with only 
$100.00 benefits, and the said land of L. X. with $90.00 benefits. 



3Il] DRAINAGE. \_% ^22 1 aa 

(4) or. That your remonstrator's land, above described, is assessed with 
$92.00 beneiits, while in fact said land is not affected nor will it be benefited by 
said proposed drainage. 

(5) or, That your remonstrator's land, above described, is awarded only 
.$20.00 damages, which is entirely inadequate; while in fact said land will be 
damaged by said proposed drain in the sum of $100.00. 

Wherefore he prays for a re-assessment of damages and benefits that will 
be occasioned by the construction of said drain. And he prays for all other 
proper relief. 

X. L., 

Per A. T., Attorney for the Remonstrator. 

Order-Book Entry. 

Iji the Matter of the Petition of the City of for a Drain. 

Comes now X. L., by A. T., his attornej^, and files a remonstrance to 
the petition of said city in these words: [Here insert] ; and thereupon the court 
orders a re-appraisement of the benefits and damages in this, to wit: 

(i) Whether the following tract of land, situated , without said city 

but within the county of , and State of Indiana, owmed by said X. L., and 

assessed with $600.00 benefits, is assessed disproportionately to all the other 
lands assessed with $8,100.00 benefits, viz.: N. E. 3^ of N. W. 3^ Sec. it, T. 24 
N., R. 4 E., containing 40 acres. 

or, (2) Whether the lands without said city, assessed with $6,200.00 bene- 
fits, are assessed in a disproportionate amount to the $2,500.00 benefits assessed 
against said city. 

or, (3) Whether the following tract of land owned by said X. L., situated 

without said city but within the county of , and State of Indiana, to wit: 

N. E. 3^ of N. W. 3^ of Sec. 11, T. 24 N., R. 4 E., containing 40 acres, assessed 
with $168.00 benefits, is assessed in a greater sum according to the benefits that 
will be derived from a construction of said proposed drain than the N. E. 3^ of 
S. W, ^ Sec. II, T. 24 N., R. 4 E., containing 40 acres, owned by L. X., as- 
sessed with $22.00 benefits, will be so benefited by said proposed drain. 

or, (4) Whether the N. E. 1^ of N. W. 3^ Sec. 11, T. 24 N., R. 4 E., situ- 
ated without said city, but within the county of , and State of Indiana, 

owned by said X. L., and assessed with $92.00 benefits, will neither be afi'ected 
nor benefited by said proposed drain. 

or, (5) Whether the award of $20.00 damages \o the N. E. 3^ of N. W. y^ 
Sec. II, T. 24 N., R. 4 E., containing 40 acres, situated without said city but 

within the county of , and State of Indiana, owned by X. L., is suflncient 

in amount for the damages said land will sustain by the construction of said 
drain. 

And the court hereby appoints N. Y., Y. Z. and W. L., three good and true 
men of judgment and discretion, and not in any way related to or affected by 
said proposed drainage, and resident householders and freeholders of said 
county, to make a re-appraisement of the benefits and damages that will be 
occasioned by the construction of said proposed drain, in accordance with this 
order. Said appraisers will meet at the residence of L. N., near the line of said 

proposed drain, on the day of , 18 — , at 10 a. m,, and shall make 

said assessment on actual view of said lands, according to the issue stated in this 

order, and report the same in writing by the day of , 18 — , duly 

verified and sworn to, to this court. The clerk will issue to said appraisers a 
certified copy of this order and notice of their appointment and the time and 
place of their meeting. 

[A certified copy of this order should be given to the appraisers appointed 
therein, and the following notice served on each of them:] 

Notice of Appointment. 
To N.Y., Y. Z.and W.L.: You are herebv notified that on tht 



day of , 18 — , you were appointed by the circuit court to appraise 

the benefits and damages accruing to certain lands by reason of the construe- 



§3221^^] 



CITIES. 



[312 



tion of a proposed ditch by the city of ; and were ordered to meet at the 

residence of L. N., near the line of said proposed drain, on the day of 

, 18 — , at 10 a. m., to make said assessment. A more particular descrip- 
tion of the premises to be viewed and the duties required of you by said court is 
given in a certified copy of said order herewith read to you and left with the 
said Y.Z. 

In testimony whereof, I have hereunto set my hand and the seal of said 

court this day of , 18 — . 

[Court Seal.] U. X., 

Clerk of the Circuit Court. 

Sheriff's Return. 

Served the within notice by giving a certified copy thereof to each of 

the within named persons on the day of , 18 — . I also read the 

copy of the order therein referred to to each of said persons, and left the same 
with Y. Z. 

X. U., 

Sheriff Co. 

Report of Appraisers. 



for a Drain. No. 



In the Matter of the Petition of the City of — 

To the Honorable Circuit Court: 

The undersigned appraisers, appointed by this honorable court on the 

day of , 18 — , to appraise the benefits and damages according to 

the terms of the order of this court made and entered of record upon said day 
in Order-Book 22, on pages 426, 427 and 428, in the matter of the petition of said 

city, hereby report: That they met at the residence of said L. N., on the 

day of , 18 — , at 10 a. m., and proceeded to view the lands described in 

said order, and after hearing such evidence as was offered, they report as fol- 
lows, to wit: 

(i) That the N. E. 1^ of N. W. 3^ Sec. 11, T. 24 N., R. 4 E., situated with- 
out said city but within the county of , and State of Indiana, assessed with 

the sum of $600.00, is not assessed too high, and is not assessed disproportion- 
ately to the other lands assessed at $8,100.00 ; [c»r, should be assessed in the sum 
of $200.00, and that the remaining $400.00 should be apportioned among all the 
other lands, and added to their present assessments, so as to make such assess- 
ments as follows, to wit: 



Owner. 


Description. 


No. 
Acrs 


I St As- 
sessment 


Deduc- 
tion. 


Addi- 
dition 


Reas- 
sess- 
ment. 


L. X. 
X.L. 


In County. 

N.W.i^ N.W 1^ S.ii,T. 24N.,R.4 E. 
N.E.^N.Wi^ S.ii,T.24N.,R. 4 E. 


40 
40 


$600 
250 


$400 


$25 


$200 



<9r, (2) That the lands without said city are not assessed disproportionately 
to the benefits assessed to said citj^; [c»r, that the aggregate sum of the benefits 
to the lands without said city are onlj^ $4,000.00, while the benefit to said city is 
$4,700.00. Upon this basis of benefits they have proportionately reduced "the 
assessment of each separate tract of land without said city as follows, to wit: 



Owner. 


Description. 


No. 
Acres. 


Amt of 
ist As- 

sessm't 


Amt of 
Reduc- 
tion. 


2nd As- 
sessm't. 


L. X. 
X.L. 


In County. 

N.W. 1^ N.W. 1^ S.ii,T.24 N.,R. 4 E. 
N.E. i^N.W.i^ S. II, T. 24 N.,R.4 E. 


40 
40 


$400.00 

127.18 


$123.17 
27.22 


$276.83 
99.96 



313] 



DRAINAGE. 



[§S22iaa 



or, (3) That the follo^ving tract of land, owned by X. L., assessed with 
$i6S.oo of benefits, to wit: N. E. 1^ N. W. 1^ Sec. 11, T. 24 N., R. 4 E., in 

county, and State of Indiana, containing 40 acres, is assessed in a greater 

sum according to the benefits than is the following tract owned by L. X., and 
assessed with $22.00 benefits, to wit: N.E.i^ N.W.i^ Sec. 11, T. 24 N., R. 4E. 
in said county, containing 40 acres; and that the tract of said X. L. should 
only be assessed with $116.00 benefits, while the tract of said L. X. should be 
assessed with $74.00 benefits. 

or, (4) That the N. E. X N. W. ^^ Sec. 11, T. 24 N., R. 4 E., containing 40 

acres, situated within the county of , and State of Indiana, but w^ithout 

said city, owned by X. L., assessed with $92.00 benefits, will be neither aftected 
nor benefited by said proposed drain; [or, will be benefited in that amount of 
benefits.] 

or, (5) ThaftheN.E.i^N.W.3^_ Sec.ii,T.24. N., R.4 E., containing 40 acres, 

situated without said city, but within the county of , and State of Indiana, 

owned by X. L., and assessed with $20.00 damages, is suflncient in amount for 
the damages said land will sustain by the construction of said proposed drain ; 
[or, is not sufficient damages, and that said land will sustain $100.00 damages by 
reason of the proposed construction of said drain, and they re-assess the benefits 
and damajjes as follows, to wit: 



L. X. 
X. L. 

N. C. 



Description. 



In 



County. 



N.W.i^N.W.i^ S.ii,T.24N.,R.4E. 
N.E.i^N.W.3^S.Ti,T.24 N.,R.4 E. 
N.E.i^ S.E.i^ S.ii,T.24 N., R.4 E. 



40 
40 
40 



$3-52 



$220.50 



$129.00 



28.00 



That the assessment upon the Yountsville public highway, from the corpo- 
rate limits of said city to said Dry creek, situated in township of said 

count}-, Avas assessed is benefited, in the amount of $492.00, which assessment is 
increased $23.00, making the second assessment of benefits thereto $515.00; and 
the benefits to said city, assessed at $1,200.00, is increased $52.00, making the 
second assessment of benefits $1,252.00. 

All of which is respectfully sulomitted this day of , 18 — . 

N. Y., 
Y. Z., 
W. L. 

State of Indiana, Cotuity of '■ — , ss: 

N. Y., Y. Z. andW. L. solemnly swear that in their opinion the above 
appraisement of benefits and damages is just, fair and equitable between the 
parties interested in the construction of said proposed drain. 

N.Y., 
Y. Z., 
\V. L. 

Subscribed and sworn to before me this day of , iS — . 

[Notarial Seal.] N. U., 

Notary Public. 



§3221^^] CITIES. [314 

Sec. 3221^<^. Appeal — Estabiishment. 3. Any party aggrieved 
by said report may within ten days after filing of said report, or 
at such other time, not less than ten days, as the court may fix, 
move the court to have any error apparent in the report corrected 
by said committee, and if necessary the court shall re-refer said 
report to the said committee with instructions to review and correct 
their said report, and when corrected and refiled it shall be con- 
clusive of the rights of the parties, unless one or more of the par- 
ties affected by said report shall, within a time to be fixed by the 
court, appeal from such report to the court, and which appeal 
shall be by the court noted on its docket, and set down for trial 
by the court. The trial of said cause shall be conducted as other 
civil cases, without a jury ; and if the court find in favor of the 
remonstrants, the court shall modify the assessments or affirm 
them as justice and equity may require ; and shall assess costs for 
or against each and every party as in the opinion of said court 
may be just: P?wided, That if the commissioners' report of assess- 
ments of benefits and damages shall substantially agree with the 
original estimates as set forth in said petition, and said remon- 
strants shall not further appeal from the report of said commis- 
sioners, the court shall in such case, assess the costs of said review 
to said remonstrants. If the finding of the court on the trial shall 
be against the remonstrants, the court shall make an order declar- 
ing the proposed work established, and shall approve the assess- 
ments as finally determined, and shall order the construction of 
said drain. The court shall refer the said drain to the drainage 
commissioner of said county and require him to construct said 
drain according to the plans and specifications as set forth in said 
petition and in accordance Vv^ith the findings and final order of said 
court. If the findings of the court shall be for or against either 
party in part, the court shall apportion the cost as justice and 
equity may require : Provided ficrther, That no part of the costs 
made by said city in its survey, plat or assessments shall be as- 
sessed as costs in the construction of said drain, but shall be paid 
by said city. 

Order-Book Entry. 

In the Matter of the Petittoti of the City of for a Drain. No. — . 

It is ordered that all parties desiring to file motions to correct any 
alleged error in the report of the committee upon the re-assessment of benefits 

and damages in this matter, filed on the — day of , i8 — , or to appeal 

therefrom, shall do so on or before the dav of , i8 — . 



Motion to Correct Error. 

In the Matter of the Petition of the City of for a Drain. No. — . 

X, L., one of the parties assessed \vith benefits in the report of the 
committee appointed to make a re-assessment of benefits and damages in the 
above matter, filed on the day of , i8 — , moves the court to require 



315] 



DRAINAGE. 



[§ 3221^* 



them to make the following correction, viz.: That he is assessed as the owner 

of the S. W. % S. E. % S. 11, T. 24 N., R. 4 E., in county and State of 

Indiana; Avhen in fact the tract assessed should be the N. E. ^ S. E. J^f S. 11, 
T. 24 N., R. 4 E., said county, as shown by the petition of said city. 

N.B., 

Attorney for Petitioner. 

Order-Book Entry. 

In the Matter of the Petitioji of the City of — 



— for a Drain. No. — . 
It is ordered that the committee appointed herein to make a re-appraise- 
ment of benefits and damages correct their report, filed on the day of 

, 18 — , so as to show that the tract assessed in the name of X. L. is the 



N. E. X S. E. X S. II, T. 24 N., R. 4 E., of the county of 



and State of 



Indiana, instead of the S. W. ^ S. E. }{ of said section 11, and that when said 
report is corrected they refile it. 



Appeal. 

In the Matter of the Petition of the City of for a Drain. No. — . 

X. L., the owner of the following land, assessed in the report of the 
committee appointed to make a re-assessment in the above matter, situated 

in the county of and State of Indiana, viz.: N. E. % N. W. ]{ S. 11, T. 

24 N., R. 4 E., containing 40 acres, re-assessed with $99.96 benefits, hereby 
prays an appeal from said assessment on the ground that said assessment is 
too high, and asks that the same be tried by the court. 



N. B., 

Attorney for Petitioner. 



Order-Book Entry. 



Di the Matter of the Petition of the City of for a Drain. No. — . 

X. L. having prayed an appeal from the re-assessment of benefits and 
damages made in this matter, said appeal is hereby granted, and set down for 
trial on the day of , 18 — . 



Order-Bool? Entry, Showing Trial and Establishment of Drain. 



In the Matter of the Petition of the City of ■ 



■for a Drain. No. 



Comes now X. L., by his attorney, N. B., and comes the city by its 
attorney, S. R., and the appeal of said X. L. is now submitted to the court, 
Avithout the intervention of a jury, for trial; and the court having heard the 
evidence and argviment of covmsel, finds against the said X. L. It is therefore 
adjudged and decreed that said X. L. pay all the costs occasionedby said appeal. 
[See below for order establishing drain]., or. Finds in favor of the said X. L,, 
and that his said land, to wit: N. E. ^ N. W. % S. 11, T. 24 N., R; 4 E., con- 
taining 40 acres, situated in the covmty of and State of Indiana, assessed 

with benefits in the sum of $99.96, is assessed too high, and should be assessed 
with onW $21.00 of benefits. It is therefore ordered and adjudged that said 
re-appraisem^ent shall be so modified as to assess all the lands benefited and 
damaged as ibllows, to wit: 



Owner. 


Description. 


Benefits. 


Damages. 


Xo. 
Acres. 


L.X. 
X. L. 
N.C. 


In county. 

N. W. X N.W.X S. ii,T. 24N., R. 4 .E 
N. E. }i N. W. X S. II, T. 24 N., R. 4 E. 

N. E. X S. E. X S. II, T. 24 N., R. 4 E. 


$152 00 
21 00 


•ti3-^ 47 


40 
40 
40 



§3221^^] CITIES. [316 

So much of the Yountsville public, highway as lies between the corporate 
limits of said city and said Dry creek, in the township of , is hereby as- 
sessed w^ith $194.68 benefits, and said city with $1,489.21 benefits. 

And it is ordered that the costs of said appeal be assessed against the said 
city of . 

It is therefore ordered, adjudged, and decreed that said drain be and the 
same is hereby established according to the plans and specifications set forth 
in the petition of said city, which are in these words: [Here insert], and the 
assessment of benefits and damages as herein determined are approved and 
declared to be a lien on the lands herein described. 

The construction of said drain is hereby referred to the drainage comiiiiis- 
sioner of this county, and he is hereby required to construct said drain accord- 
ing to the plans and specifications set forth in said petition, and in accordance 
with the findings and the order of this court. 



Order-Book Entry, Establishing Drain where No Objections are Filed. 

In the Matter of the Petition of the City of for a Drain. No. — . 

Comes now the city of , by S. R., its attorney, and shows to the 

court that on the day of , 18 — , it filed a petition with the clerk of 

this court for the establishment of a drain, which petition is in these words: 
[Here insert. \ 

And said petitioner further shows to the court that by indorsement on said 

petition it fixed the day of , 18—, as the day on which a motion 

would be made in this court for docketing said petition; and gave notice to all 
concerned in the construction of said proposed drain, by publication for twenty 
days in the Argus -News., the first publication of which notice was on the 

day of , 18 — , and the last on the day of , 18 — , a daily 

[or., weekly] paper published in the county of and State of Indiana, of 

its intention to make said proposed motion, Avhich notice is in these words: 
[Here insert.] 

And it appearing to the court, in pursuance of a motion made for that pur- 
pose, that said petition was docketed on the day of , 18 — , in this 

court, and more than three days having expired since the same was so docketed, 
and no motion, demurrer, remonstrance, or objection to the form, sufficiency, or 
allegations of said petition having been filed, the court finds that the allegations 
of the petition are true, and said petitioner having moved for judgment thereon: 

It is therefore considered, ordered, and decreed by the court that said peti- 
tion be and the same is hereby confirmed; that the assessments made therein 
be and the same are hereby approved, and that the drain therein described be 
and the same hereby is established. 

It is further considered and ordered by the court that the construction of 
said drain and of all work necessary to carry out the plans and specifications of 
said petition be and the same are hereby assigned to N. S., drainage commis- 
sioner of the county of • with directions to construct the same. 

Sec. Z2^\cc, Construction. 4. The commissioners charged with 
the construction of said inlet or outlet, shall proceed to construct 
the same as hereinbefore provided and ordered. He shall make 
all necessary assessments and collect the same from time to time 
as may be required ; he shall pay all costs not otherwise adjudged 
against parties ; shall pay all expenses incident to the construc- 
tion of said inlet or outlet, and such expenses as the court shall 
deem a proper charge upon the funds in the hands of said commis- 
sioner. His assessments made from time to time shall be upon 
the lands benefited and the assessments against said city, ratably 
upon the amount of benefits as adjudged by the court, such sums 



31/] DRAINAGE. [§ 3221(7^ 

of money as may be necessary therefor, not exceeding the whole 
benefits so adjudged upon any one tract or against said city, and 
require the same to be paid in installments not exceeding twenty 
per cent, per month, at such times as he shall fix, after thirty days' 
notice thereof, to be given by personal notice to the owner of said 
lands, or by one publication in a newspaper published in such city. 
He may divide the work into such parts as he may deem best, and 
let the same to the best advantage, in such parts or altogether, as 
he may determine, and contract for the construction thereof. He 
shall collect the assessments so made by him and apply the same 
as herein provided ; and for the purpose of making such collec- 
tions, if not paid as above required, he shall have all the power to 
distrain and sell personal property which is, by law, conferred 
upon the county treasurer for the collection of taxes, and for so 
doing shall be allowed the same fees and costs. He may, if he so 
determine, bring suit in the name of the State of Indiana, for his 
use as commissioner of drainage, in any court of competent juris- 
diction, to enforce a lien upon any tract or tracts of land for the 
amount so assessed by him, and also to bring suit against said city 
in the court making the order for the construction of said inlet or 
outlet, and which court shall have power to enforce its orders 
against said city by attachment as for contempt against mayor and 
common council of said city, or against any other officer of said 
city Avho, being required to pay or provide for the payment of 
said assessments, shall neglect or refuse to obey the order of said 
court. All judgments and orders obtained may include reason- 
able attorney fees for services in prosecuting the same, and shall 
be without relief from valuation or appraisement laws ; or he may 
make his certificate, showing the amount of such assessments 
against any tract of land, and that default in its payments as re- 
quired has been made, and file the same with the auditor of the 
county wherepn] such lands are situated, and thereupon the auditor 
shall place the same upon the succeeding tax duplicate, and the 
same shall be collected as State and county taxes are collected : 
Providijtg fiirtJier, That default made by such city shall be prose- 
cuted in the court where said petition was filed, and which court 
shall have all like remedies for enforcing its judgments known to. 
the courts of law and equity of the State. 

Assessment by Drainage Commissioner. 

In the Matter of t lie Petition of the City of for a Drain. 

I, N. S., drainage commissioner of the county of and State of 

Indiana, directed in the above entitled proceedings to construct a certain ditch 
in said county, described in the petition of said city filed in said proceedings and 

the final order of the circuit court made on the day , iS — , 

establishing the same, hereby make the following assessments against the real 
estate to be affected by said work, the amounts assessed to be paid in in- 
stallments of per cent, of the amount of each assessment of dol- 
lars each, payable on the day of each and eyery month, commencing on 

the day of , i8 — . 



§ 3221^^] 



CITIES. 



[318 



Owner. 



Description. 



Amount of ist 
Assessment. 



Amount of 2nd 
Assessment. 



N. S., 

Drainage Commissioner. 

[There should be as many installments stated in this assessment as there are 
payments to be made.] 

Notice Requiring Payment of Assessments. 



■ for a Drain. 



In the Matter of the Petition of the City of - 

Notice is hereby given to all persons against whose lands assessments 

of benefits have been made by the judgment of the circuit court in the 

above entitled matter, and to the city of , and R. A., trustee of 

township of the county of and State of Indiana, that undersigned, drain- 
age commissioner of county, has assessed against their lands the follow- 
ing amounts: \Set out the fiames of the parties., description of their lands .^ and 

amount assessed.] And requiring that they pay the same to him at , in 

the city of , county of , State of Indiana, in installments of twenty 

per cent, thereof per month, the first installment to be paid on or before the 

day of , 18 — , and one installment to be paid on the day of 

each and every month thereafter until the whole sum so assessed is paid. 

You are further notified that if said assessments are not paid at the time 
above stated, in accordance with said assessment, I will proceed to collect the 
same according to law. 

N. S., 

Drainage Commissioner. 



Notice of Letting Contract. 



In the Matter of the Petition of the City of 
Notice is hereby given that until the 



for a Draifi. 
day of 



18- 



I, to 



whom has been assigned the construction of the drain described in the peti- 
tion of said city and order of the circuit court in the above entitled 

matter, will receive bids for the construction of said drain. 

Said work has been divided into stations of 100 feet in length, and bids for 
constructing said drain, or any part of it, must be by such stations. 

A computation of the number of cubic yards of excavation in each of said 
stations has been made, and will be furnished to any person interested or bid- 
, ding on said work. 

Said contract will be let to the lowest and best bidder by stations. 

Any person to whom a contract is let will be required to enter into a written 
contract and give bond with surety for the performance of the work, and that 
he will pay all damages occasioned by his non-fulfillment of his contract. 

The right to reject any and all bids is reserved. 

Dated this day of ,18—. N. S., 

Drainage Commissioner. 



Contract. 



This agreement, made and entered into on the day of , 

18 — , hy and between S. L. and N. S., drainage commissioner of the county of 

, v/itnesseth: 

That said S. L. hereby agrees to construct a certain drain located in said 
county, and more fully described in the petition of the city of , and the 



319] DRAINAGE. [§ ^22ICC 

judgment and decree of the circuit court, in the matter of the petition 

of said city for a drain; the portion of said drain included in this contract 
being described as follows: 

From station to station , being lineal feet. 

From station to station , being lineal feet, etc., and being 

the part of said work let to said S. L. on the day of , 18 — . 

Said work to be done and performed in all respects to said petition and judg- 
ment now on file in the clerk's office of said court. 

Said S. L. hereby agrees to do the said work at the price of cents per 

cubic yard, and to fully complete the same by the day of , 18 — . 

This contract is made and the money to pay for said labor is to be collected 
and paid under the provisions of an act concerning the drainage of cities, ap- 
proved March 6, 1891, which is hereby referred to and made part of this con- 
tract; said N. S. acting in his official capacity only. 

In witness whereof, the said S. L. and said N. S., as drainage commissioner 

of county, have hereunto set their hands this day of , 18 — . 

S. L. 

N. S., Drainage Commissioner. 

Bond of Contractor. 

Know all men by these presents, That we, S. E. and U. T., acknowl- 
edge ourselves to be indebted and bound unto the State of Indiana in the sum. 
of dollars, for the payment of which we bind ourselves, jointly and sev- 
erally, by these presents. Conditioned as follows: Whereas, N. S., drainage 

commissioner of the county of , State of Indiana, has this day let to said 

S. L. the contract to construct a portion of a certain drain in said county, which 
contract is in writing, bearing even date herewith, whereby said S. L. has con- 
tracted to construct the follov/ing parts of said drain : 

From station to station , being lineal feet, for the sum 

of cents per cubic yard. 

Now, if the said S. L. shall fully perform his said contract and pay all dam- 
ages occasioned by his non-fulfillment thereof, then this obligation to be void; 

else in full force. Sealed and dated this day of , 18 — . 

S. L., [Seal.] 
U. T. [Seal.] 

Approved by me, this day of , 18 — . 

N. S., 

Drainage Commissioner. 

Certificate of Drainage Commissioner to County Auditor. 

To the Auditor of County: 

The undersigned, commissioner of drainage for said county, charged 

by the order of the circuit court with the construction of a certain drain 

for drainage purposes in said county, hereby certifies that assessments for the 
construction of said work have been made against lands in said county, as appears 
below, and owned by the parties named, which assessments have been duly ap- 
proved by said circuit court, and that the payment thereof, though past 

due, has not been made, as required by said commissioner. 



Owner. 


Description. 


Amount Dne. 




• 





Dated , 18—. X. S., 

Dr:iinas:e Commissioner. 



§322 !<;,;] CITIES. [320 



Complaint on Assessment. 



In the Circuit Courts Term^ 18- 



The State of Indiana on the Relation of N. vS., Drainage Commissioner of 

County^ vs. A I. . No. . 

The plaintiff complains of the defendant and alleges: That on the 
day of , 18 — , the common council of the city of , of the 



county of and State of Indiana, adopted a resolution declaring it expe- 
dient to construct a drain from within said city to a point without it, for the 
purpose of drainmg a certain portion of said city, and to obtain an outlet for 
that purpose, and ordered the civil engineer ot said city to make a survey of 
the proposed route of said drain and of the lands without said city to be affected 
therebv, and to prepare a plat thereof , which survey and plat said engineer 
made and reported the same to said council. 

That said council thereupon appointed three disinterested householders and 
freeholders of said county as a committee to appraise and make an assessment 
of the benefits and damages that would accrue by reason of the construction of 
said drain, which appraisement and assessment said committee, after having 

met on the day of , 18 — , at a designated place, made and reported 

in writing, under oath, to said council. 

That at least three days before the making such estimates of benefits and 
damages said city notified m writing all the owners of all of the lands affected 
by said proposed drain that on the day as aforesaid stated, at a designated place, 
said committee would meet for the purpose aforesaid. 

That upon the report of said committee said council approved it and said 
survey, and caused a record of said approval to be duly entered of record in the 
journal of its proceedings, and ordered the city attorney thereof to file a peti- 
tion, signed by a majority of the members of said council, certified to be such 
by the mayor of said city under the seal of said city, attested by the clerk 

thereof, in "the circuit court, setting forth that such outlet was necessary 

to effectually drain said city, which petition, so drawn and signed, said city at- 
torney did file in said court on the day of , 18 — . That said city 

fixed and noted on said petition that a motion would be made in said court to 

docket said petition for a hearing on the day of , 18 — , and gave 

twenty days' notice by publication of the proposed motion, therein giving the 
names of the owners of the lands to be affected by said proposed drain. 

That upon said day, upon motion of said city, said petition was duly dock- 
eted by order of court for hearing. 

That on the day of , 18 — , said mattei came on for a hearing in 

said court, and such proceedings were had therein that the court confirmed 
said petition, a copy of which petition is filed herewith, marked Exhibit A, and 
made a part hereof, declared the proposed drain established and approved the 
assessments contained in said petition, ordered the construction of said work, 
and the construction thereof assigned to this relator, a copy of which order is 
filed herewith, and made a part of this complaint, marked Exhibit B, and re- 
quired him to construct said drain according to the plans and specifications set 
forth in said petition [and in accordance wdth the findings and final order of the 
court]. 

That on the • day of , 18 — , the relator, as such commissioner, 

made an assessment against the lands to be aft'ected by said work, a copy of 
which is filed herewith and made a part of this complaint, marked Exhibit C, 

and required that the amounts so assessed be paid in installments of per 

cent per month on the day of each and every month, commencing on 

the day of , 18 — . 

That he gave notice of said assessment, and of the time and place where the 
required payments should be made, bj' publication '\xi Argus- Nexus, a newspaper 
of general circulation, printed and published at , in said county. 

That no part of said sum assessed against the lands of the defendant has bedn 
paid, although the time set for its payment has long since passed. 

That a reasonable fee for plaintiffs attorney in this action is dollars. 

Wherefore the plaintiff demands judgment for dollars, for the use 

of the relator; that the same be declared a lien against the lands of the defend- 



32i] 



DRAINAGE. 



"SS 



^22idd, I22\ee 



ant described in the assessment, made part of the complaint; that said real 
estate, or so much thereof as maybe necessary to pay and satisfy the judgment 
and costs, be sold as other lands are sold on execution for the satisfaction 
thereof and for all other proper relief. 

L. T., 

Attorney for Phiintift". 

Sec. 3221^<^. Notices. 5. The filing of the petition and docketing 
the same, as provided in section one of this act, shall be deemed 
notice of the pendency of proceedings to all persons whose lands 
are named in the petition and to said city, and the final order of 
the court fixing the amount of assessments shall be deemed notice 
of said liens and a charge against said city. The commissioner 
charged with the construction of the work shall, as soon as may 
be after he has been directed to construct said work, make out a 
notice, wherein he shall state that the work has been established 
by the court; also the several assessments to the tracts of land, 
as the same have been finally confirmed by the court, and cause the 
same to be recorded in the office of the recorder of the county in 
fvhich said lands are located. 

Notice of Assessment to be Filed in Recorder's Office. 



/;/ the Matter of the Petitioyi of the City of ■ 
Assessmeyit. 



for a Drain. Notice of 



Notice is hereby given by the undersigned, drainage comrnissioner for 

the county of , directed by the circuit court to construct the drain 

hereinafter described, that on the day of , i8 — , the city of 



filed a petition in the clerk's office of the county of , State of Indiana, 

for the construction of a drain, running from near the intersection of Pine and 
Walnut streets of said city westwardlj' to Dry creek, \yithin said county, and 
sho\ying an assessment and appraisement of lands that would be benefited or 
damaged by such construction, and the several amounts of such benefits tmd 
damages, as follows: 





Owner. 


Description of Lands. 


Amount of 
Benefits. 


Amount of 
Damages. 











And that said petition was by said court duly confirmed, said assessment and 

appraisement approved, and said drain established on the day of , 

18—. 

Dated , i8— . N. S., 

Drainage Commissioner, 



Sec. o22lce. Act liberally construed. 6. This act shall be liber- 
ally construed to promote the drainage of cities, the reclamation 
of wet lands, and the improvement of the public health. Col- 
lection[s] and assessments shall not be defeated by reason of any 
defect in the proceedings accruing prior to the judgment of the 
court, but said judgment shall be conclusive that all prior proceed- 
ings were regular and according to law ; nor shall any person, at 
21 



§§ 3221^, 3221^^^^] 



CITIES. 



[322 



any stage of the proceedings herein, be permitted to take any 
advantage of an error, default or informaHty, unless the person 
complaining is directly affected thereby. If the court shall deem 
it just to release any person, or modify any assessment or liability, 
such release or modification shall in no manner affect the rights or 
liabilities of any other person. 

Sec. 3221^ Repairs. 7. Repairs shall be governed by the 
law in force in relation to repairs of ditches as in other cases by 
law may be provided : Provided, That in cases of emergency said 
city shall have the right to open up or clean out said inlet or out- 
let, for which the proper officer having the keeping of said inlet 
or outlet in repair shall assess benefits or damages for or against 
said city, or for or against the land-owners or the highway, if any 
are affected thereby, and shall fully pay said city therefor, less its 
benefits. 

See Acts 1885, p. 141, § 10; El. Supp. § 1193. 

Sec. 3221^^. Report of commissioner. 8. On the completion 
of said inlet or outlet, the commissioner having the construction 
thereof shall make and file in said court a report, therein showing 
the amount of moneys by him received, and from whom and at 
what time he received the same. He shall also show when, to 
whom, and for what said moneys were paid, with proper vouchers 
therefor, excepting for incidental expenses. He shall also show 
the number of days, giving day and date of time by him devoted 
to the construction thereof, and which report shall be duly verified 
by the oath of said commissioner, signed and acknowledged accord- 
ing to law. 



Report. 



In the Circuit Coicrf, Term^ 18 — . 

In the Matter of the Petition of the City of for a Drain. 

To the Honorable Circuit Court: 

Your commissioner of drainage upon his oath makes the following 



report in the above matter, having completed said drain on the 
, 18—. 



day of 



Amounts of Moneys Recei'oed. 



^'rom Waott.. 


AVhen Received. 
±-irst Installment. 


Amount. 


When Received. 
Second Installment 


Amount. 


Total I 
Received. 














I 






General Total Received, 


$ 



3^3] 



DRAINAGE. 

Amoioits of Money Paid. 



[§S22l/lk 



To Whom. 


Xo. "\^oucher. 


Amount, 


When Pnid. 


For WHiat Paid. 













Number of days devoted by me to the construction of said drain 



Day of Month, 


Year. 


No. Days. 








Total number davs, 





N. S., 

Drainage .Commissioner, 



I, N. S,, upon my oath say that the above report is true and correct. 



N. S. 



State of Indiana., County of , 5.?. 

Subscribed and sworn to before me, this 
[Notarial Seal.l 



day of 



L. U., 

Notary Public, 



Sec. 3221M. Agreement to assessment. 9. After making said 
survey, plat and assessments, as hereinbefore required to be made, 
said city, by its common council, or a committee by it duly ap- 
pointed, may submit said survey, plat and estimates of benefits 
and damages (or copies thereof) to the owners of lands affected 
thereby, and to the proper officer having charge of highways af- 
fected by said proposed inlet or outlet; and [if they] will accept 
said estimates of benefits and damages as therein assessed or 
agreed upon with said city, then and in such case, said city shall 
cause said survey, plat and assessments as agreed upon, together 
with the agreement of said parties, duly acknowledged, to be re- 
corded in the office of the recorder of said county, and when so 
recorded [it] shall conclude the rights of the parties thereto, and be- 
come a lien upon the lands affected thereby for assessments made 
against said lands not exceeding the amount of said original as- 
sessments or as modified by the agreement of said parties. The 
recording of said survey, plat, estimates and agreements shall be 
deemed as an establishment of said inlet or outlet, and shall en- 
title said city to proceed and construct and maintain said inlet or 
outlet as a part of the city drainage ; and shall entitle said city, 
by its duly qualified officers, to assess and collect assessments by 
it made in the construction of said inlet or outlet, as if made by 



§ 322 I M] 



CITIES. 



[324 



the commissioner of drainage as herein provided : Providing fuHher, 
That under this provision said city shall keep said inlet or outlet 
in repair at its own expense, with a right of action against any 
person for damages who wantonly or carelessly fills or blocks the 
flow of the water in said inlet or outlet, and judgments rendered 
herein in any court shall be without relief, and include reasonable 
attorney's fees for the complaining party. 

All the parties affected must sign the agreement ; and if one of them declines 
to do so, the drain can not be established under this section. 



Resolution Appointing Committees. 

Resolved, that a committee of three of this council, to be selected bj 
the mayor, be appointed to submit the survey, plat and estimates of benefits 
and damages, heretofore made, to the owners of lands affected by the proposed 
construction of a drain beginning near the intersection of Pine and Walnut 
streets of this city and extending westwardly to Dry creek, and also to sub- 
mit the same to the trustee of township. 



Acceptance. 



We. the owners of the property, a description of which is set out op- 
posite our names, and which property has been assessed by the city of , 

State of Indiana, with amount of benefits or damages, as herein stated, that will 
be occasioned by the construction of the proposed drain running from near the 
intersection of Pine and Walnut streets of said city to Drv creek, a more par- 
ticular description of which is contained in the report of "the civil engineer of 
said city, filed on the day of , 18 — , and in the report of the com- 
mittee made thereon to the mayor of said city on the day of , 18 — , 

hereby accept said estimates of benefits and damages as therein assessed and 
agreed upon with said city, as the full amount of damages or benefits respect- 
ively due us, viz. : 



Xame. 


Description of Land. 


No. 
Acres. 


Amount 
Damag-es. 


Amount 
Benefits. 


L. X. 
X. L. 


N. W. y^ N. W. y^ S. II, T. 24 N., 4 E. 
N. E. y^ N. W. 1^ S, II, T. 24 N., 4 E. 


40 
40 


$22.00 


$126.00 





















In testimony whereof, we hereunto set our hands and seals at the county of 

, and State of Indiana, this day of , 18 — . 

L. X., [Seal.] 
X. L. [Seal.] 

State of T}idia7ia, County of , 5.?. 

Personally appeared before me, N. J., a notary public in and for said 
county, the said L: X. and X. L., and acknowledged the execution of the fore- 
going instrument. 

In testimony whereof, I have hereunto set my hand and notarial seal this 

-^ day of , 18 — . 

[Notarial Seal.] N. J., 

Notary Public. 



CHAPTER XXII. 
CITIES AND TOWNS. 

ART, ART. 

1. Gcne7'al Provisio7is. 5. Cemeteries. 

2. A?i7iexatio7i — Bou7ida7'ies. 5a. l7nproved Streets. 

3. Taxatio7i. 5b. Parks. 

4. Water-works. 

ARTICLE I.— GENERAL PROVISIONS. 

SEC. _ SEC. 

3222. Qiialifications for office. 3229. Planting shade-trees, 

3223. Qiuilifications of voters. 3229a. Injuring trees on highway. 

3224. Elections. 3229^. Cutting shade-trees. 

3224(7. Donations legalized. 3229^. Electric and other lights in cities and 
2)22^b. Traction or road engines on streets. towns. 

3224^:. Engineer's duties— Whistling. T,22gd. Poles, wires, posts, etc. 

3224^. INIisdemeanor. 3229^. Right to erect and maintain poles. 

3224^. Right of way for railroads through T^22<)f. Contracts and grants valid. 

cities and towns. 3229.if. Assesment of damages. 

3225. Prisons. 3229A. Natural gas regulations. 
3225^. Assessment and collection of taxes in 3229/". Contractor must satisfy records. 

cities and towns of less than 70,000 3230. Issuance of funding bonds, 

population. 3231. Sinking fund and interest. 

3226. Removal of garbage, etc. 3231(5. Coupons received in payment of taxes. 
3226a. Officer interested in public contract. 323i<r. Repeal. 

32263. Removal of officer for intoxication. 3232. Notices, 

32261:. Amount of liquor license. 3232(1;. Notices, where may be published. 

3227. Security for arms. 3232(5. License for pawnbrokers. 

3228. Distribution of arms. 

[i R. S. 1852, p. 373. Approved and in force June 10, 1852.] 

Sec. 3222. Qualifications for office, i. No property qualifica- 
tion shall be necessary to render any citizen eligible to hold any 
office of any municipal incorporation in the State. 

Sec. 3223. Qualifications of voters. 2. In all municipal elections 
under town or city charters in this State, no other qualifications 
shall hereafter be required of any voter than such as are made 
necessary under the constitution of the State, except that the 
voter shall reside in the ward or district where he may offer to 
vote. 

See §§ 84 and 46S0. 
[1881 S., p.482. Approved April 21, i8Si,and in force September 19, iSSi.] 

Sec. 3224. Elections. 60. In city and town elections, each 
ward in which the number of voters does not exceed three hun- 
dred and fifty shall constitute a precinct; Provided^ That the com- 

325 



§§ 3224^, 3224<^] CITIES AND TOWNS. [326 

mon council of any city or the trustees of any town shall make 
such changes in places of holding elections, or divisions in precincts, 
in their respective cities and towns, as will limit the number of 
voters in each precinct to three hundred and fifty as near as may 
be: Provided, T\\2X no such changes or divisions shall be made 
without giving due notice, at least one month before any election, 
either by publication in the newspaper having the largest circula- 
tion in the county in which such city or town is situated, or by 
posters put up in four of the most public places in such precinct. 
Such council or trustees shall appoint three qualified voters in 
each precinct, one to act as inspector and two as judges of elec- 
tions, who shall have been freeholders and resident householders 
in such precinct for at least one year next preceding any election 
at which they may officiate; such inspectors and judges to be 
appointed according to such regulations as are hereinafter specified. 
Such inspector and judges, when so appointed, shall constitute a 
board of election ; which board of election shall have all the powers 
and shall perform all the duties of boards of election, as herein be- 
fore specified. [See g§ 4695 to 4720.] 

With respect to the division of the city into precincts and holding elections, 
cities and towns are now governed by the election law of 1S89, § 4710;^. This 
section is in a part superseded. See §§ 4686, 46S7. 

[1889, P.2S1, Approved and in force March 9, 1889.] 

Sec. 3224^7. Donations legalized, i. All gifts, donations, sales, 
and transfers of money, stocks, bonds, and other property by any 
incorporated city or town in this State, made prior to January the 
1st, 1885, to any manufacturing or other company duly incorpo- 
rated under any law of this State, other than railroads which was 
then engaged in business in such city or town, or has since in good 
faith engaged in business therein, and has, since such gift, dona- 
tion, sale, and transfer, acted in compliance with the terms on 
which the same was made, and the action of the various city coun- 
cils, boards of trustees, and city and town officers in making and 
completing such gifts, donations, sales, and transfers, are hereby 
legalized and declared valid: Provided, That nothing in this act 
contained shall in any way affect any suits now pending in this 
State, but the same may be tried and determined as if this act had 
not been passed. [EL Sup. § 808.] 

The validity of this act is very doubtful. See § 3152, note 6. 

1 1889, p. 428. Approved and in force March 11, 1889.] 

Sec. 3224^. Traction or road engines on streets, i. Any person 
or owner of a traction or road engine, shall, while using the said 
engine on any public highway, street, or alley of any incorporated 
town or city, send some person in advance of said engine, not less 
than fifty yards to warn all persons approaching, who are in charge 
of a horse, team or teams, of their proximity to such engine. [El. 
Sup. § 347.] 



327] RAILROADS PRISONS TAXATION. [§§ 3224^, 3225^ 

Sec. 3224^. Engineer's duties; — Whistling. 2. And it shall be 
the duty of the engineer in charge of said engine or the owner 
thereof, upon the approach of said horse, team, or teams, to drive 
said engine to one side of the road or street when practicable, and 
to stop said engine until said horse, team, or teams, have passed 
said engine, and the whistle of said engine shall not be sounded 
while said horse, team, or teams are passing. [El. Sup. § 348.] 

Sec. 3324^. Misdemeanor. 3. Any person or persons violating 
any provision of this act, shall be deemed to be guilty of a misde 
meanor, and upon conviction thereof, shall be fined in any sum not 
less than five dollars, and not exceeding fifty dollars. [El. Sup. 

§ 349-] 

[1865, p, 51. In force March 6, 1865.] 

Sec. 3224r. Right-of-way for railroad through cities and towns. 
I. The trustees of any town or the common council of any city 
may grant to any person, corporation, or company the right and 
privilege to locate and run a railroad track through said town or 
city, on the streets or alleys thereof, for the purpose of conveying 
coal into or through said town or city, under such restrictions and 
regulations as the trustees or common council may require. [R. 
S. 1881, § 4098.] 

See § 3161^. 

[1861 S., p. 21. Approved June i, 1861, and in force September 7, 1861.] 

Sec. 3225. Prisons, i. Any incorporated town or city shall 
have power to erect a prison within the limits of such town or 
city ; and it shall be lawful to imprison therein persons convicted 
of offenses against the laws of such incorporation, or for offenses 
against the penal laws of this State, and also, persons charged 
with offenses punishable by indictment or presentment, tempora- 
rily, until they can be conveniently removed to the county jail. 
So far as the same shall be applicable, the law governing county 
jails shall be the law of such town or city prison; and in all cases 
where the county jails are convenient, they may be used for town 
purposes until a town or city prison shall be erected. 

With respect to a city prison, see § 3106, clause 44. Power of marshal to 
imprison, see § 3075, and 7iof.p, Use of workhouse, § 6237. 

[1S85, p. 199. Approved and in force April 11, 1885.] 

Sec. 3225^. Assessment and collection of taxes in cities and 
towns of less than 70,090 population, i. The board of trustees 
of any incorporated town in this State, and the common council 
of any city in this State containing a population of less than 
seventy thousand, as shown by the last census of the United 
States, in which the office of city assessor has been previously 
abolished, may, by a provision contained in the ordinance or reso- 
lution fixing the tax levy for every year, provide that the taxes 
so levied shall be entered by the auditor of the proper county 



§ 3^26] CITIES AND TOWNS. [328 

Upon his duplicate, and collected by the treasurer of such county 
as other taxes for the State and county purposes are collected, 
instead of being collected by the officers of such town or city. A 
certified copy of such ordinance or resolution shall be by the clerk 
of such town or city, filed with the auditor of the county on or 
before the first Monday in June of each year; and said auditor 
shall assess said taxes against all the property and polls within the 
corporate limits of such town or city subject to taxation and enter 
the same upon his tax duplicate; and the treasurer of such county 
shall collect such municipal taxes upon such duplicate as other 
taxes thereon are collected, and pay the same over when collected 
to the proper officer of such town or city. When town or city 
taxes are collected by county of^cers under this act, the same 
may be paid in installments on the third Monday in April and on 
the first Monday in November in like manner as similar taxes for 
state, county, and township purposes are payable, and shall 
become delinquent in like manner and subject to the same penal- 
ties upon non-payment as other taxes. And all of the provisions 
of the law concerning the coUection of state, county, and township 
taxes by county officers, shall apply to the collection of town and 
city taxes by county officers under the provisions of this act. 
[El. Sup. § 810.] 

1. The tax should be extended upon the county tax duplicate in a separate 
column for that purpose. A separate tax duplicate, perhaps, can not be used, 
and if used, extra pay therefor can not be demanded bv the county auditor. 
When payment in installments in cities may be made, see § 3i6o<7. 

2. The following resolutions should be a part of the ordinance levying the 
tax; it can not be separate and apart from it. 



Resolution. 

The taxes hereby levied shall be entered by the auditor of county 

upon his duplicate, and shall be collected by the treasurer of said county as 
other taxes for state and county purposes are collected ; and the clerk of the 
city [or, town] is hereby ordered to certify to a copy of this ordinance and file 
the same with said auditor on or before the first Monday in June of the present 
year. 

[1875, p. 28. Approved and in force March 9, 1S75.] 

Sec. 3226. Removal of garbage, etc. i. The common councils 
of the cities and the trustees of the incorporated towns of this 
State are empowered and authorized to pass by-laws to secure the 
removal of slops, garbage, the carcasses of dead animals, and other 
waste material from their corporate limits, and to appoint and con- 
tract for such removal, and provide that the persons appointed, or 
contracted with, shall have the exclusive right to remove the same, 
and to provide such penalties for the violation of by-laws, in ac- 
cordance with the general laws for the incorporation of cities and 
towns, now in force, or which may hereafter be adopted. 

See § 3106, clause 22, ?iote. 



329] CONTRACTS INTOXICATION OF OFFICERS. [§§ 3226<^, 3226^ 

[iSSi S.,p. 174. Approved April 14, iSSi,and in force September 19,1881,] 

Sec. S226a. Officer interested in public contracts. 144. Any state 
officer, county commissioner, township or town trustee, mayor or 
a common councilman of any city, school trustee of any town or 
city, or their appointees or agents, or any person holding any 
appointing power, or any person holding a lucrative office under 
the constitution or laws of this State, who shall, during the time 
he may occupy such office or hold such appointing power and 
discharge the duties thereof, be interested, directly or indirectly, 
in any contract for the construction of any state-house, court- 
house, school-house, bridge, public building, or work of any kind 
erected or built for the use of the State, or any county, township, 
town, or city in the State, in which he exercises any official juris- 
diction ; or who shall bargain for or receive any percentage, draw- 
back, premium, or profits, or money whatever, on any contract or 
for the letting of any contract or making any appointment wherein 
the State, or any county, township, town, or city is concerned, — 
upon conviction thereof, shall be fined not more than five thousand 
dollars nor less than three hundred dollars, and imprisoned in the 
state-prison not more than fourteen years nor less than two years, 
and disfranchised and rendered incapable of holding any office of 
trust or profit for any determinate period. [R. S. 1 881, § 2049.] 

A town trustee may not contract with the board to build a town building. 
His contract is void, 91 Ind. 476; nor a town treasurer to grade a street, no 
Ind. 294. Such a contract is void. 45 Ind. 250; 59 Ind. 520. See 77 Ind. 307, 
and § 3104, 7iofe. 



[1875, P- 91- Approved March 11, 1875, and in force August 24, 1S75.] 

Sec. 3228^. Removal of officer for intoxication, i. Any person 
holding any office under the constitution or laws of this State, who 
shall voluntarily become intoxicated within the business hours of 
his office, or shall be in the habit of becoming intoxicated by the 
use of intoxicating liquors, shall forfeit his office and be removed 
therefrom, upon complaint, filed in the circuit court of the county 
in which he resides, by any citizen of this State, alleging that he is 
a citizen of the State of Indiana, and giving the name of the person 
complained of, designating the office which he holds, and that such 
officer has voluntarily become intoxicated within the business hours 
of his office, or is in the habit of becoming intoxicated by the use 
of intoxicating liquors during hisi continuance in office. The clerk 
of said court shall docket said cause for trial, and issue summons 
for the defendant as in other causes. If, upon the trial of said 
complaint, either by the court or a jury, it shall be found that the 
facts stated in the complaint are true, such officer shall be adjudged 
to have forfeited his office, and the office be adjudged vacant. 
[R. S. 1881, §6012.] 

This section is constitutional, Si Ind. 327. 



§§ 3226^ — 3228] CITIES AND TOWNS. [33O 

[1S89, p. 395. Approved March 11, 1S89, and in force May 10, 1889.] 

Sec. 3226^. Amount of liquor license. 2. No city or incorporated 
town shall charge any person who may obtain a license under the 
provisions of this act, more than the following sums for license to 
sell within their corporate limits : Cities m.ay charge two hundred 
and fifty dollars, and incorporated towns one hundred and fifty 
dollars in addition to the sum provided for hereinbefore. [El. 
Sup. § 1684.] 

The above section is an amendment of Section 5317 of the Revised Statutes 
of 1881; and forms a part of the statute concerning the licensing of intoxicating 
liquors. It is constitutional, even as to those persons having a license when it 
went into force, 120 Ind. 476. See § 3106, clause 13, notes^ and § 3333, clause 

7, notes. 

[1861 S., p. 20. Approved and in force May 10, 1861.] 

Sec. 3227. Security for arms. i. Whenever the mayor and 
common council of .any incorporated city or the trustees of any 
town in the State of Indiana shall obtain from the state authorities 
arms of any kind, to be used by the military organizations of such 
cities or towns ; or whenever any volunteer military organization 
shall obtain arms from the State, — it shall be lawful for the mayor 
and common council of such city or the trustees of such town to 
cause to be executed and delivered to the governor of the State of 
Indiana, a bond, conditioned, according to law, for the safety and 
delivery of such arms in the manner as now by law provided; and 
said bond shall have the same force and effect as a bond with per- 
sonal security is now held. 

Sec, 3228. Distribution of arms. 2. The governor may, in his 
discretion, distribute public arms, as herein provided, to any incor- 
porated town or city, notwithstanding any other law in conflict 
herewith. 

Resolution Ordering Bond. 

Whereas, the Indianapolis Light Guards, a voluntary military organiza- 
tion of this city, has obtained from the State of Indiana, one hundred Henry 
rifles for the use of the members thereof, therefore 

Resolved, by this council, that the mayor of this city be and is hereby 
ordered, directed and impowered to execute and deliver to the State of Indiana, 

the bond of this city in the penal sum of dollars, for the safe keeping and 

delivery of said rifles to said State, whenever demand is made therefor bv the 
legally constituted state authorities. 

Bond. 

Whereas, the common council of the city of , State of Indiana, by 

a resolution adopted on the day of , 18 — , directed the mayor there- 
of to execute a bond payable to the State of Indfena, in the penal sum of 



dollars, conditioned for the safe keeping and delivery to said State of one hun- 
dred Henry rifles, obtained by the Indianapolis Light Guards, a voluntary mili- 
tarv organization of said city, from said State, whenever delivery thereof be de- 
manded by the legally constituted state officers; therefore, 



33 1] SHADE-TREES. [§ 3229 

The citv of acknowledges itself bound unto the State of Indiana in 

the penal sum of dollars. Witness the hand of the mayor and the seal of 

said city this day of , 18 — . 

The' condition of the above bond is, that if said guards shall safely keep and 
deliver up said rifles in the same condition they were when received (w-ear and 
ordinarv tear excepted), to the legally constituted authorities of said State upon 
demand, then this bond shall be void; else in full force and efi:ect. 

Attest: The City of , 

[Corporate Seal.] C. D., By A. B., Mavor. 

Clerk of the City of . 

[1865 S., p. 104. Approved and in force December 20, 1865.] 

Sec. 3229. Planting shade-trees, i. The incorporated cities and 
incorporated towns of this State are hereby invested with full 
power to compel the owners of lots and parts of lots bordering on 
any street, alley, public square, or common of said cities and 
towns, to plant and maintain shade-trees along said streets, alleys, 
public square, or common, under the same regulations and in the 
same manner in which the grading and paving of streets and side- 
walks are now enforced. When such owners shall petition the 
common council for the planting and maintaining of any particular 
kind of tree, said council shall, in making their order for the same, 
designate the kind of tree named in said petition ; but when the 
kind of tree shall not be designated in said petition, or where 
shade-trees are required to be planted and maintained on order of 
the council without petition, then the council, in making the 
proper order, shall designate therein the kind of tree to be planted 
and maintained. The common council are hereby invested with 
full power to pass by-laws and ordinances for the protection and 
preservation of trees established in pursuance of this act, and to 
designate the distances at which shade-trees shall be established, 
and the kind of boxing or other protection for the same, the cost 
of which shall be assessed and collected in the same manner in 
which the cost of establishing and maintaining shade-trees is as- 
sessed and collected. 

See § 3106, clause 46, notes. 

AN ORDINANCE TO PROVIDE FOR PLANTING SHADE-TREES ON STREET. 



Sec. I. Be it ordained by the Common Council of the City of , That 

shade-trees of soft maple be set on the outside edge of each sidewalk on 

street, not less than two inches in size at the butt, and ten feet in length, 

and properly boxed with slat boxes, and that the expense of planting and boxing 
said trees as aforesaid, (except so much thereof as is occupied by the public 
grounds owned by said city bordering thereon, and for crossings of streets 
and alleys,) be assessed against and collected from the owners of the lots bor- 
dering o*^ said street, between the limits aforesaid. 

Sec. 2. The civil engineer is herebv directed to set the proper grade stakes, 
and to advertise, by publication, one day each week for two successive weeks, 

in the ,and by posting up printed notices in not less than five of the most 

public places in the city, that sealed proposals will be received by the common 
council at its meeting, to be held on the dav of , 18 — , for the ex- 
ecution of said work. 

Sec. 3. This ordinance shall take effect and be in force from and after its 
passage. 



§§ 3229(3: Z^2gc\ CITIES AND TOWNS, [332 

[1881 S., p. 174. Approved April 14. iSSi, and in force September 19, iSSi.] 

3229^. Injuring trees on highway. 62. Whoever shall willfully, 
maliciously, or mischievously, and without right, cut down, or in 
any way injure, any tree on the public highway shall be fined not 
more than five hundred dollars nor less than five dollars. [R. S. 
I88i,§i963.] 

Charge. 



T/ie State of Indiana^ County of . .'^.t. 

The State of Indiana vs. A. B. Before X. L.^ a justice of the feace of 

to'iV7ishif: 

C. D., upon his oath, savs that at the county of , and State of In- 
diana, on the day of , i8 — , A. B. did then and there unlawfully, will- 
fully, maliciously, mischievousl}^, and without right, cut down a certain tree then 
and there growing on Vernon street, a public highway within the corporate 

limits of the town of , within said county, running from the corporate 

limits of said town to East street thereof, contrary to the form of the statute in 
such cases made and provided. 

C. D. 

Subscribed and sworn to before me this day of , i8 — . 

X. L., 

Justice of the Peace. 

Sec. 3229<5. Cutting shade-trees. 64. Whoever removes, de- 
stroys, cutSj^'or girdles any shade-tree, or carries off or removes or 
in anywise injures the protecting box of any shade-tree, in any 
city, town, or village of this State, shall be fined in any sum not 
more than fifty dollars nor less than three dollars ; but this section 
shall not be so construed as to prevent any owner of grounds from 
making any necessary alterations in the walks or trees on the same. 
[R. S. 1881, § 1965.] 

Charge. 

\Bcgin as in charge on § 3229a.] Did then and 'there unlawfully cut 
down a certain shade-tree then and there growing on the lands of E. F. within 

the corporate limits of the city [or, town] of , within said county, contrary, 

etc. \end as i?i charge on § 3229a.] 

[1883, p. 85. Approved and in force March 3, 1883.] 

Sec. 3229^. Electric and other lights in cities and towns, i. The 

common council of any city in this State, incorporated either under 
the general act for the incorporation of cities, or under a special 
charter, and the board of trustees of all incorporated towns of this 
State, shall have the power to light the streets, alleys, and other 
public places of such city and town with the electric light, or other 
form of light, and to contract with any individual or 'corporation 
for lighting such streets, alleys, and other public places with the 
electric light, or other forms of light, on such terms, and for such 
times, not exceeding ten years, as may be agreed upon. [El. Sup. 
§ 794.] 



333] ELECTRIC LIGHT. [§§ 3229<^ — 3229,^ 

Sec. 3229(^. Poles, wires, posts, etc. 2. For the purpose of effect- 
ing such hghting, the common council of any such city, or the 
board of trustees of any such town, may provide by resolution or 
ordinance for the erection and maintenance, in the streets, alleys, 
or other pubhc places of said city or town, of such poles, wires, 
posts, masts, skeleton towers, and other appliances or structures 
as may be necessary for such purpose. [El. Sup. § 795-] 

Sec. 3229r. Right to erect and maintain poles, etc. 3. Any 

such incorporated city or town is hereby authorized to grant by 
resolution or ordinance, under such restrictions as the common 
council of such city, or board of trustees of such town, may deem 
proper, to any person or corporation, the right to erect and main- 
tain, in the streets, alleys, and other public places of such city or 
town, posts, poles, wires, and other necessary appliances, under- 
ground in said streets, alleys, and other public places, for the pur- 
pose of supplying the inhabitants of such city or town with such 
electric or other light. [El. Sup. § 796.] 

Sec. 3229/! Contracts and grants valid, 4. Any contract hereto- 
fore made by any such incorporated city or town for the lighting 
of its streets, alleys, and other public places, with the electric or 
other form of light, and any grant heretofore made by any such 
city or town to any person or corporation of the right to erect and 
maintain poles, wires, masts, posts, or skeleton towers in the streets 
or other public places of said city or town, for the purposes speci- 
fied in this act, which does not grant or confer any exclusive 
privileges, is hereby declared to be as valid for all purposes as if 
made after the taking effect of this act : Provided, That the terms 
of this section shall affect no pending suit. [EL- Sup. § 797.] 

Sec. 3229^. Assessment of damages. 5. Any corporation en- 
gaged in the business of lighting cities or towns, or the public or 
private places of their inhabitants, with the electric light, or other 
form of light, under the provisions of this act, shall have the right 
to acquire such real estate and rights of way as may be necessary 
for its business under the writ of assessment of damages as fully as 
if the act in relation to said writ were incorporated in this act and 
made part of the same : Provided, That in the assessment of 
damages, consideration shall be had for damages occasioned by 
the proximity of such poles, wires, masts, posts, or skeleton tow- 
ers to real estate or improvements thereon, as well as to damages 
arising from the appropriation of real estate for the purposes in 
this. act set forth. [El. Sup. § 798.] 

I. This statute is constitutional; and under it a city or town mav either 
contract for light or buy and operate the necessary machinery and plant. In 
payment of such plant and machinery it may issue bonds, under the general 
principle that a municipal corporation with authority to purchase property 
may issue its bonds in payment, unless there is some statutory or constitution-al. 
prohibition, 121 Ind. 206. 



g§ 3229/2 3230] CITIES AND TOWNS. [334 

2. A city or town can not, however, put in a plant to supply private con- 
sumers with light, and if it attempts to do so, it may be enjoined ; nor can it use a 
plant put in for public lighting to supply private consumers. 

3. Where a pedestrian, carefully passing along a side-walk in the day-time, 
falls over an electric light wire negligently permitted by the company to lie 
thereon, he is not, as a matter of law, guilty of contributory negligence in failing 
to observe the obstruction, and the company is liable, 126 Ind. 220. 

[18S7, p. 36. Approved and in force March 7, 1SS7.] 

Sec. S22d/i. Natural gas regulations, i. The boards of trus- 
tees of towns and the common councils of cities in this State, shall 
have power to provide by ordinance, reasonable regulations for the 
safe supply, distribution and consumption of natural gas within the 
respective limits of such towns and cities ; and to require persons 
or companies to whom the privilege of using the streets and alleys 
of such towns and cities is granted for the supply and distribution 
of such gas to pay a reasonable license for such franchise and priv- 
ilege. [El. Sup. § 800.] 

1. See §'S 3110, 3ii0rt, and 3110/^ 

2. This act does not authorize a city or town to grant an exclusive privilege 
to lay gas-pipes in the streets. It requires a general ordinance, granting to all 
companies the same privileges on complying Avith the terms of the ordinance. 
A grant to one company of an exclusive privilege does not authorize another 
company to use the streets, on the plea that such grant is void, 114 Ind. 332. 

3. The law prohibiting the conveying of natural gas beyond the limits of 
the State is void, 120 Ind. 575 ; S. C. 30 Cent. L. Jr. 179. See 30 Cent. L. Jr. 497; 
and 29 Amer. L. Reg. 93, 102, on questions relating to natural gas. The validity 
of the act of 1891 (Acts 1891, p. 89) has not been passed upon by the courts. 

[1885, p. 73. Approved March 7, 1885, and in force June 5, 1885. j 

Sec. 32292. Contractors must satisfy records, i. The common 
councils of the cities of this State and boards of trustees of incor- 
porated towns of this State shall have power to pass and enforce 
ordinances requiring contractors making street or other improve- 
ments in such cities, [or towns] to receipt and fully satisfy the 
estimate records and other books showing a lien against any one's 
property in favor of such contractor, within thirty days from the 
time of the payment of such estimate to said contractor, and to im- 
pose penalties for violation of such ordinances. [El. Sup. § 823.] 

[1887, p. 15. Approved and in force February 15, 18S7.] 

Sec. 3230. Issuance of funding bonds, i. Any city or town in 
this State, having a voting population of less than sixteen thou- 
sand, as shown by the votes cast for secretary of state at the last 
preceding election, and having an indebtedness evidenced by 
bonds, notes, or other obligations heretofore issued or negotiated 
by such city or town, may, for the purpose of funding such indebt- 
edness, or any part thereof, and reducing the rate of interest 
thereon, and canceling so much thereof as may be due or shall 
hereafter become due, upon the vote of two-thirds of the members 
of the common council of such city or the board of trustees of 



335] FUNDING BONDS PUBLIC NOTICES. [§§ 323 I 3232 

such town, issue its bonds, with interest-coupons attached, for an 
amount not exceeding, in the aggregate, the whole amount of the 
indebtedness of such city or town ; which bonds may be of any 
denomination not less than fifty dollars nor more than one thou- 
sand dollars, and shall be payable at any place named therein, and 
at a time not later than twenty-five years from the date thereof, 
and shall bear any rate of interest not exceeding six per cent, per 
annum, payable semi-annually; and such city or town may nego- 
tiate such bonds at any market or place at not less than par. [El. 
Sup. § 803.] 

Sec. 3231. Sinking fund and interest. 2. The common council 
of such city or the board of trustees of such town shall add to the 
tax duplicate thereof, annually, a levy sufficient to pay the yearly 
interest on said bonds and may provide a sinking fund for the 
liquidation of the principal thereof, when it shall become due; 
when sinking fund, together with all interest, increase, or profit 
thereon, shall be applied to the payment of said bonds and to no 
other purpose: Provided, This act shall not authorize the issuance 
of bonds for the purpose of funding, nor the levy of any tax to 
pay any indebtedness of a city or town which has been held to be 
illegal by any court of competent jurisdiction; nor shall this act 
be construed to have the effect of legalizing any illegal debt of or 
any bonds illegally issued by any city or town. [El. Sup. § 804.] 

Sec. 3231^. Coupons received in payment of taxes. 3. The interest 
coupons attached to any bonds issued by authority of this act may, 
by order of the common council or board of trustees, when due, 
be made receivable for taxes levied or assessed in any such city or 
town, or other municipal corporation for the payment of such 
interest ; and when so ordered and so expressed upon the face of 
the coupons, they shall be receivable in payment for any taxes 
thereafter levied or assessed in the city, town or other municipal 
corporation issuing the same, for the payment of said interest. 
[El. Sup. § 805.] 

Sec. 3231^. Eepeal. All laws and parts of laws in conflict with 
the provisions of this act are hereby repealed. . [El. Sup. § 806.] 

See ^^ 3120 and 3125, note 2. Temporary investment of funds, §3i58<7. The 
only effect which the adoption of the constitutional amendment (§ 220), with 
respect to municipal indebtedness had upon these four sections was to limit 
their application to debts contracted prior to March 14, 1S81, and to such as 
have been since incurred, not in excess of the two per centum limit upon the 
value of taxable property of the municipality, 107 Ind. 106. 

[1855, p. 130. Approved March 3, 1S55, and in force August 17, 1S55.] 

Sec. 3232. Notices. 5. All notices now required by law to be 
given by the trustees of any incorporated town or city, may here- 
after be given by written notices, to be posted up in three of the 
most public places within such incorporated town or city. 

See §§ 3100(7, and 3100/^, and § 3232a. 



§§ 3232^ 3234] CITIES AND TOWNS. [336 

[1S91, p. 72. Approved and in force March 4, 1S91.] 

Sec. 3232^. Notices, where may be publislied. i. In all cases 
where it is now or may hereafter be provided by law that publica 
tion shall be made in a newspaper or newspapers of general circu- 
lation, published within a city or incorporated town, and where 
no newspaper or newspapers are published in such city or incorpo- 
rated town, it shall be lawful to make such publication in any news- 
paper or newspapers published in the county where such city or 
incorporated town is located. 

See §§ 3232, 3100, 3100a, 3100*^, and 3100c. 

[1891, p. 403. Approved and in force March 9, 1891.] 

Sec. 3232(^. License for pawnbrokers, i. Common councils of 
cities and boards of trustees of incorporated towns, incorporated 
under the laws of Indiana, shall have the power to license and 
regulate the business of pawnbroking within the corporate limits 
of their respective cities or towns, and impose upon persons en- 
gaging in such business a license fee of not less than ten nor more 
than one hundred dollars. 

Formerly the license could not be exacted, but an exhibition of all goods 
pawned, to the police force for examination could and can be now required. 
26 N, E. Rep. 560. 



ARTICLE 2— ANNEXATION— BOUNDARIES. 



3233- 
3234- 
3235- 
3236. 
3237- 
323s- 
3239- 
3240. 
3241. 
3242. 
3243- 

[1857, p. 22. Approved and in force February 16, 1857.] 

Sec. 3233. Union of cities and towns, i . Where an, incorporated 
town and an incorporated city adjoin each other, they may be 
consolidated or united, or the town annexed to the city, provided 
a majority of the qualified voters of the town and a majority of the 
qualified voters of the city shall vote in favor thereof, at elections 
to be held as hereinafter provided. 

Sec, 3234. Terms and conditions. 2. The common council of 
the city and the president and trustees of the town shall first agree 
on the terms and conditions upon which such union, consolidation, 
or annexation shall take place, and also upon a day when an elec- 
tion shall be held for the people of such town and city to vote 
upon the question of union, consolidation, or annexation, upon 
the terms specified in such agreement. 



Union of cities and towns. 


3244- 


Auditor's duty. 


Terms and conditions. 


3245- 


Trial. 


Agreement made public. 


3246. 


Effect of appeal. 


Election. 


3247- 


Disannexing territory. 


Tickets. 


324S. 


Disannexing territory. 


Report of election— Annexation, 


3249- 


Survey and plat. 


Name. 


3250. 


Survey and, plat. 


Name. 


3251- 


To be kept by city clerk. 


Eflfect of union. 


3252. 


Law applies to towns. 


Property and debts. 


3253- 


Legalized plats. 


Appeal'from. county board. 


32530 


Ground platted within a city or town 



337] ANNEXATION BOUNDARIES. [§ 3234 

Resolution of City Inviting Negotiation. 

Resolved, by the common council of the city of , State of In- 
diana, that the president and trustees of the town of be and are hereby 

requested to meet this council in this chamber at 7:30 p, m. on the day 

of , 18 — , for the purpose of entering into an agreement to unite and 

consolidate this citj^ and said town [or, to annex said town to this city.] The 
clerk of this city is ordered to file with the clerk of said town a certified copy 
of this resolution ; and said town clerk is hereby requested to lay the same 
before the board of trustees of said town. 

Resolution of Acceptance. 

Resolved, that the invitation of the common council of the city of 
adopted on the day of 18 — , inviting the president and 



trustees of this town to meet it at 7:30 p. m. on the day of , 18- 

in the council chamber of said city, for the purpose of entering into an agree- 
ment to unite and consolidate said city and this town [or, to annex this town 
to said citv,] be and the same is hereby accepted. The clerk of this town is 
ordered to file with the clerk of said city a certified copy of this resolution ; 
and such city clerk is hereby requested to lay the same before the common 
council of said city. 

Agreement for Union of City and Town. 

The city of , of the State of Indiana, by its common council, and 

the town of , of the State of Indiana, by its board of trustees, with a view 

of uniting and consolidating in joint assembly, pursuant to the resolution of 

invitation of said city, adopted on the day of iS — , and pursuant 

to the resolution of acceptance of said town, adopted on the day of 

18 — , hereby mutually agree, each with the other, that said city and town 

shall be united and consolidated upon the following terms, to wit: 

1. The name of said newly created city shall be the city of Arno. 

2. The members of the common council of said city of shall consist 

of the present members of the common council of the city of , and the 

present members of the board of trustees of th'e tovv^n of , who shall serve 

out the terms for which they are respectively elected, as representatives of the 
wards from which they were respectively elected ; and each shall have an equal 
membership in the common council of said city of Arno until his successor is 
elected and qualified. 

3. Whenever such imion or consolidation shall take effect, all the offices of 
said town, except the offices of trustees of the civil town, shall be abolished without 
further act upon the part of said town or said newly created city of Arno, and 
each officer of said town shall immediately turn over to his like representative 

of the present city of all books, documents, records, property, moneys, 

credits, and everything belonging to said town in his possession, and such like 

officers of the city of — shall have the right to demand and receive such 

property, moneys, credits, and to settle with such town officer and give him a 
receipt therefor. 

4. The present officers of the city of shall continue in office and 

constitute the officers of said newly created city of Arno, for the length of 
time for which they were elected, and until their successors are elected and 
qualified. 

5. An election shall be held in said city of , and town of , on 

the day of 18 — , for the purpose of determining whether said city 

and town shall be united and consolidated. 

6. If the vote be in favor of the consolidation and union, then said board of 
trustees shall meet said common council in the council chamber of said city on 

the day of , 18 — , at 7:30 p. m., for the purpose of completing said 

union and consolidation. 

Witness the hands of the mayor, and members of the common council, 



§§ 3235 3237] CITIES AND TOWNS. [338 

of said city of , and its corporate seal ; and the hands of the president 

and trustees of said town of , and its corporate seal, at the council cham- 
ber of said city, this day of , 18 — . 

A. B., 

Mayor of the City of . 

C. D., 
E. F., etc. 

Members of the Common Council of the City of . 

Attest: 
[Corporate Seal.] L. X., 

Clerk ot the City of 

U. T., 

President. 

R. S., etc. 

Members of the Board of Trustees of the Town of . 

Attest: 
[Corporate Seal.] X. L. 

Clerk of the Town of . 

Sec. 3235. Agreement made public. 3. Such agreement shall 
be made public at least three weeks before the time agreed upon 
for such election, by publishing the same at least three times in 
each newspaper printed and published in the county where such 
town and city are situated, and by posting printed hand-bills, con^ 
taining said agreement, in three of the most public places in each 
ward of such town and city. 

Notice. 

Notice is hereby given to the inhabitants of the city of , State of 

Indiana, [or, town of , State of Indiana,] that pursuant to an invitation of 

the common council of said city, the board of trustees of the town of , 

State of Indiana, met said council in the council chamber of said city, on the 
day of , 18 — , and they mutually entered into the following agree- 
ment for the union and consolidation of said city and town, viz.: 
[Insert agreement in full.] 
Notice is therefore given that an election will be held in said city [or, town] 
at the usual voting places therein, between the hours of 6 [or, 8] a. m. and 6 p. m., 

on the day of , i8 — , for the purpose of determining whether said 

city and town shall be united and consolidated. 

L. X., 

Clerk of the City of . 

[or, X. L., 
Clerk of the Town of .] 

Sec. 3236. Election. 4. The election above provided for shall 
be held at the time agreed on, as above provided, and at the 
places where other city and town elections are usually held in such 
city and town respectively, and be governed by the laws and 
regulations governing other city and town elections in such city 
and town respectively. 

So far as applicable, the election law of 18S9 must be followed. 

Sec. 3237. Tickets. 5. Those who vote in favor of union or 
annexation according to the agreement aforesaid shall have on 
their tickets the word ** Union," and those who vote against it 
shall have on their tickets the words "No union," or equivalent 
words. 



339] ANNEXATION BOUNDARIES. [§3238 

Sec. 3238. Report of election — Annexation. 6. The inspect- 
ors and judges of the election shall report to the common council 
and president and trustees, respectively, the result of such election. 
And the report of the inspectors and judges of the town election 
shall be entered on the records of the president and trustees, and 
a certified copy thereof delivered to the clerk of the city; and the 
report of the inspectors and judges of the city election shall be 
entered on the records of the common council, and a certified copy 
thereof delivered to the clerk of the town. And if a majority of 
the votes given in the town as well as a majority of the votes given 
in the city are in favor of union or annexation, then the president 
and trustees and the common council shall meet at the council 
chamber of. the city council, and, by resolution, declare that the 
town is annexed to the city or the two united, as the case may be, 
according to the agreement aforesaid. And such resolution shall 
be entered on the, records of the city council, and such record, and 
certified copies thereof, shall be conclusive evidence of such union 
or annexation, and a copy of such resolution shall also be recorded 
in the recorder's office of the county where such city is situated, 
and copies of such record shall be good evidence in all courts. 

Each precinct reports directly to the common council or board of trustees; 
and each body for itself then ascertains the result by adding up the totals. 

■Report of Election Board. 

To the Common Councillors Board of Trustees\of the City [or ^Toxvii^of .• 

The undersigned, inspectors and judges of precinct number , of 

said city [or, town], at an election held between the hours of 6 [or, 8] a. m. and 

6 p.m., on the day of , i8 — , in said city [or, town], for the purpose 

of determining whether said city [or, town] should be united and consolidated 

with said the town [or, city] of , pursuant to the agreement of the common 

council of said city and the trustees of said town, entered into on the day 

of , i8 — , report as follows, viz.: 

Those voting in favor of said consolidation were 

Those voting against said consolidation were 

Majority in favor of said consolidation ...... 

A. B., 
Inspector. 

CD., 

E. F., 

Judges. 

Clerk's Certificate of Election Returns. 

I, A. B., clerk of the city [or, town] of , hereby certify that the 

following are full, true and complete copies of the reports entered of record in 
the records of the common council [or, board of trustees] of said city [or, town] 

on the day of , i8 — , made by the inspectors and jvidges of election 

held in said city [or, town] on the day of , i8 — , for the purpose of 

determining whether said city [or, town] should be united and consolidated 
with the town [or, city] of , both of the State of Indiana. 

[Set out copies of all certificates.] 

In testimony whereof, I have hereunto set my hand and the seal of said citv 

[or, town], this day of , i8 — . 

[Seal.] B. X., 

Clerk of the City [or, Town] of . 



§§ 3239 — 3242] CITIES AND TOWNS. [34O 

Resolution of Consolidation. 

Whereas, on the day of , iS — , the common council of the 

dty of , and the trustees of the town of , both of the State of Indiana, 

by mutual arrangement met in the councilchamber of said city, and entered into 
an agreement for the consolidation and union of said city and town, to be known 
as the city of ; and 

Whereas, said agreement was published for three weeks before the day of 
election hereinafter mentioned, by publication in the weekly journal; and 

Whereas, at an election held respectively in said city and town, for the pur- 
pose of determining whether they should be united and consolidated, on the 

day of , iS — , after due notice had been duh- given, there w^as, in 

said city, in favor of the union and consolidation votes cast, and only 

votes against the proposed union and consolidation, and there was, in 

said town, in favor of the union and consolidation votes cast, and only 

votes against the proposed consolidation and union, as appears from the 

certificates of the inspectors and judges of elections in said city and town ; and 

Whereas, it thus appears that there was a majority of the votes cast in said 
city in favor of said proposed union and consolidation; and a majority of the 
votes cast in said town were in favor of said consolidation and union; therefore, 

It is jointly ordained and resolved by the common council of said city, and 

by the board of trustees of said town, that said city of and said town be 

and the same are hereby united and consolidated, and it is so declared, under 
and by the name of the city of Arno, by which name the territories of said city 
of and of said town of shall hereafter be known, upon the follow- 
ing terms, as agreed upon in said agreement, of the dav of , 18 — , 

viz.: 

[Set out the second^ third and fourth clauses of the agreement.^ 

The clerk of this city is hereby ordered to file a certified copy of this resolu- 
tion in the recorder's office of the county of . 

Sec. 3239. Name. 7. If the agreement aforesaid should be to 
annex the town to the city, and the election and resolution afore- 
said shall be in favor thereof, then the town shall be deemed a 
part of the city to all intents and purposes, and the city shall con- 
tinue its corporate name and existence. 

Sec. 3240. Name. 8. If the agreement aforesaid be to unite or 
consolidate, then the agreement aforesaid shall contain also a 
stipulation as to the name of the consolidated or united town and 
city. 

Sec. 2241. Effect of union. 9. When a town and city shall be 
consolidated or united as aforesaid, they shall constitute one city, 
by the corporate name agreed on as aforesaid. 

Sec. 3242. Property and debts. 10. In case of annexation as 
aforesaid, the city shall be liable for all debts, contracts, and 
liabilities of the town, and shall be entitled to all the rights, credits, 
moneys, effects, and property of the town ; and may sue and be 
sued in relation thereto in the name of the city. And in case of 
a union or consolidation, the new city shall be liable for all debts, 
contracts, and liabilities of the town and city consolidated, and be 
entitled to all the rights, credits, moneys, effects, and property of 
the town and city consolidated or united, and may sue and be sued 
in relation thereto in the name agreed on and adopted for the con- 



34 1 ] DISANNEXING TERRITORY. [§§ 3243 3247 

solidated city as aforesaid. And in case of either annexation or 
consolidation, all actions pending may be prosecuted to final judg- 
ment and execution, and all judgments heretofore rendered may be 
executed and enforced without any change of the parties and with- 
out any change of the name of plaintiff or defendant. 

[1S79 S., p. 94. Approved March 28, 1S79, and in force May 31, 1879.] 

Sec. 3243. Appeal from county board. i. In proceedings 
before the board of county commissioners for the annexation of 
territory to cities and towns against the will of the owner, the 
petitioner and the owner of any portion of the territory proposed 
to be annexed may appeal to the circuit court from the final 
decision of the board, by filing, within thirty days, with the auditor, 
a bond or undertaking for the due prosecution of the appeal and 
payment of all costs that may be adjudged against the appellant, 
with sureties, to be approved by the board or the auditor. But no 
appeal shall be dismissed for want of a sufficient bond or under- 
taking, if one shall be filed, under the direction of the court, at 
any time before the trial. 

Sec. 3211 Auditor's duty. 2. Within twenty days after filing 
the appeal bond or undertaking, the auditor shall deliver it, with 
all the other papers in the cause and a complete transcript of the 
proceedings of the board, to the clerk of the circuit court, who 
shall docket it with the other causes pending therein. 

Sec. 3245. Trial. 3. The appeal shall stand for trial, when 
taken during the session of the board, at the first term after the 
papers shall have been filed ten days, and, when taken in vacation, 
at the first term after summons shall have been served upon the 
appellee ten days before the first day of such term. The appeal 
shall be tried and determined as an original cause. 

Sec. 3246, Eifect of appeal. 4. All further proceedings in the 
annexation of territory shall be suspended until the final disposition 
of the appeal. The court may make a final determination of the 
proceeding and compel its execution, or may send its decision to 
the board, with direction how to proceed, and require compliance. 

[1881 S., p. 91. Approved April 13, 1881, and in force September 19, iSSi.] 

Sec. 3247. Disannexing territory, i. Cities and towns of this 
State desiring to disannex territory, or to reduce their city or town 
limits, shall have power to do so in the manner following: The 
common council of cities and boards of trustees of towns desiring 
the relief under this act shall cause a petition to be filed with the 
board of commissioners of the county in which such city or town is 
situated, reciting the fact of the desire of such city or town to dis- 
annex certain territory and surrender jurisdiction over and control 
of the same, particularly describing the same and, in such petition, 



§ 3247] CITIES AND TOWNS. [342 

formally surrendering all claims to control of and jurisdiction over 
such land. Notice of the filing of such petition and the substance 
thereof shall be published, for three weeks successively, in some 
newspaper printed and published in such county, previous to the 
first day of the meeting of such board of commissioners. If the 
facts in such petition be found to be true, said board shall cause 
an order to be made upon their record, declaring such property 
disannexed from such town or city from the date of such order, 
and that the same shall be relieved from the control of such city 
or town, and no longer be subject to such jurisdiction ; which said 
order, when so made, shall be published for three weeks success- 
ively in some weekly newspaper printed and published in said 
county: Provided, That nothing herein contained shall release the 
territory so disannexed and surrendered from any taxes or other 
liens existing against such city or town at the time of, or prior to 
the order of such county board disannexing such territory. 

Resolution. 

Resolved, that the following petition be presented to the board of com- 
missioners of the county of , viz. : 

To the Board of Commissioners of the Coujity of : 

The common council lof the city of , State of Indiana, state that said 

city desires to disannex the following described territory and surrender its 
jurisdiction over and control of the same, viz.: \Describe it particularly,] and said 
city does hereby surrender all its claims to control of and jurisdiction over said 
described land. 

The City of , 

By A. B., Mayor. 

[A certified copy of this resolution and petition should be laid before the 
board of commissioners.] 

Notice. 

To Whom it May Concern : 

Notice is hereby given that on the day of , 18 — , the 

common council of the city of , filed a petition with the board of com- 
missioners of the county of , expressing a desire to disannex and surren- 
der jurisdiction and control over the following territory, to wit: [Describe it], 
and formally surrendering all claims to control of and jurisdiction over such 
land. 

A. B., 
Clerk of the City of — . 

Commissioners' Record. 

Whereas, on the • day of , 18 — , the city of , State of 

Indiana, filed the following petition before this board, viz.: [Set it out], and 

Whereas, notice of the facts of said petition, and the substance thereof, was 

published for three weeks successively in the Weekly Argus, a. newspaper 

printed and published in this county, previous to the first day of this present 
term; and 

Whereas, this board finds the facts recited in said petition to be true ; there- 
fore 

It is ordered and decreed that such property, viz.: [Describe it], be and !s 
hereby disannexed from said city from this date, and the same is hereby relieved 
from the control of said city, and is no longer subject to its jurisdiction. 

[This order should be published in full.j 



343] SURVEYS AND PLATS. [§§ 3248, 3249 

[1S77, p. 22. ■ Approved March 3, 1877, and in force July 2, 1877.] 

Sec. 3248. Disannexing territory i. The common council of 
any city or the board of trustees of any incorporated town of this 
State is hereby authorized and empowered, at any regular meeting 
of the same, on the apphcation of any owner of any suburban lot 
or tract of land not laid out in lots, by a two-thirds vote of such 
common council or board of trustees, so to modify the boundaries 
of such city or incorporated town, as to exclude therefrom such 
lots or tracts of land, upon such terms as such common council or 
board of trustees may impose. 

Petition. 



To the Common Council of the City of .- 

The undersigned, owner of the following unplatted and suburban tract 
of land within said citj, respectfully prays that the corporate limits of said citj' 
be so changed and modified as to exclude said tract from the limit and jurisdic- 
tion of said citv, to wit : [Describe the land.] 

A. B. 

Resolution. 

Whereas, A. B., the owner of the following unplatted and suburban 
tract of land within this city, to wit : [Describe the la?id] has presented a 
petition to this council praying that the boundaries of the city be so modified 
as to exclude said tract of land from the corporate limits of this city ; therefore, 
it is hereby ordered and ordained by this council that corporate limits of the 
city be modified as follows, to wit : [Describe the modificatio7i\ and that the 
jurisdiction of the city over said tract be released upon the following terms, viz.: 
[State the terms. \ 

Acceptance of Terms of Release. 

To the Common Council of the City of .• 

I, A. B., hereby accept the terms your honorable body imposed upon me 
by your resolution of the day of , 18 — , for the release of the follow- 
ing tract of land, owned by me, from the jurisdiction of said city, viz.: [De- 
scribe the la}id.] 

A. B. 

[1872 S., p. 14. Took effect without executive approval December 27, 1872. j 

Sec, 3249. Survey and plat, i. Any city incorporated under 
the authority of this State that has no sufficient survey and plat 
thereof may, by a resolution of the common council thereof, adopt- 
ed by a vote of ayes and nays (providing two-thirds of all the 
members of such council shall vote therefor), order and direct that 
a survey and plat of such city shall be made by competent persons, 
to be chosen by such council. And when any such survey and 
plat shall have been made, the common council of such city may 
adopt such survey and plat, by resolution, by a vote ot ayes and 
nays, providing three-fourths of all the members of such common 
council shall vote therefor. And when a certified copy of the 
resolution ordering such survey and adopting the same, with the 
vote thereon, and the names of the members voting for and against 



§ 2,2^6] CITIES AND TOWNS. [344 

the same, signed by the mayor and clerk, and attested by the seal 
of such city, shall have been recorded, together with the survey 
and plat, in the office of the recorder of the county in which such 
city may be located, the said survey and plat shall be deemed and 
taken as adopted by such city for all purposes whatsoever ; and 
the original, or the record thereof or any duly certified copy there- 
of, shall be admissible in evidence in any judicial proceeding in all 
courts of justice, in all cases and for all purposes. 



Resolution Ordering Survey. 

Whereas, no sufficient survey of this city has ever been made, therefore 
It is ordered and directed that a complete survey and plat of the city be 
made, and A. B., C. D., and E. F. are hereby chosen to make such survev and 
plat. 

Certified Copy of Resolution Adopting Survey, with Journal Entry Showing 

the Vote. 

Whereas, A. B., C. D., and E. F. have made a complete survey and 
plat of this city, in pursuance of the order of the council, choosing.them for that 

purpose, adopted on the day of , 18 — , and have filed said plat 

with the clerk of this city, therefore 

Resolved, by this council, that such survey and plat be and the same is here- 
by adopted by this city as the official survey and plat thereof. The mayor of this 
city is hereby requested to sign a certified copy of said survey and plat, the city 
clerk to attach his signature, and cause the same to be recorded in the recorder's 
office of the county of , State of Indiana. 

Which resolution was adopted by the following vote, to wit : Those voting 
in favor of the adoption of said resolution, were X, Y, Z, U, O, M, and L — 
eight; those voting against its adoption, were R and T — two. Three-fourths of 
all the members of the council having voted for its adoption, it was declared by 
the mayor in open council duly adopted. 

Mayor's Certificate. 

I, L. U., mayor of the city of , State of Indiana, hereby certify 

that the above is a full, true and complete copy of a resolution adopted by the 

common council of said city on the day of — , 18 — , and journal entry 

thereof, and that said resolution was adopted by a three-fourths vote of the aye's 
and nays of all the members of said common council. I also certify that the 
survey and plat hereto attached, marked " Exhibit A," which I have signed, 
is the survey and plat referred to in said resolution and adopted by said common 
council. 

Sec. 3250. Survey and plat. 2. Whenever any survey and plat 
of any city shall have heretofore been made, and such city may 
desire to adopt the same, it shall be competent for such city to do 
so by resolution of the common council thereof, by a vote of ayes 
and nays, providing three-fourths of all the members of such com- 
mon council shall vote therefor. And when such resolution adopt- 
ing the said survey and plat, with the names of the mem.bers voting 
for and against the same, duly authenticated as provided in the 
preceding section, shall have been recorded, v.^ith the said survey 



345] SURVEYS AND PLATS. [§§3251 3253^ 

and plat, in the office of the recorder of deeds of the county in 
which such city is located, the same shall be deemed and taken as 
adopted by such city for all purposes whatsoever, and the original 
plat and survey, or the record thereof or any copy thereof, duly 
authenticated by the mayor and clerk, under their hands and at- 
tested by the seal of such city, shall be admissible in evidence in 
any judicial proceeding in all courts of justice, in all cases and for 
all purposes. 

Forms to § 3249 can be modified and used. 

Sec. 3251. To be kept by city clerk, 3. The original survey and 
plat, when recorded by the recorder, shall be deposited in the office 
of the clerk of such city for safe-keeping. 

Sec. 3252. Law applies to towns. 4. The provisions of this act 
shall extend to all towns incorporated under the authority of this 
State. In such incorporated , towns as have a board of trustees 
instead of a common council, the duties required by this act to be 
performed by the mayor shall be performed by the president of the 
board of trustees, and the duties required to be performed by the 
common council shall be done and performed by the board of trus- 
tees thereof 

[1S81, p. 56. Approved and in force March 3, 1881.] 

Sec. 3253. Legalised plats. 2. The acknowledgments of all 
plats of towns and cities, and of all additions thereto, heretofore 
taken and certified by any officer provided for in section 3374, are 
hereby legalized; and the recording of such plats and additions 
as have heretofore been acknowledged before and certified by any 
officer provided for in said section is hereby declared to be valid 
and effectual in law to all intents and purposes. 

[1891, p. 386. Approved March 9, 1891, and in force June 3, 1891.] 

Sec. 3253^. Ground platted within a city or town. Whenever 
any property owner in any incorporated city or town of this 
State shall plat any unplatted realty lying within the corporate 
limits of said city or town into in-lots or out-lots, or shall plat any 
out-lot within any city or town into in-lots, he shall, before record- 
ing the said plat, submit the same to the common council of such 
city, or the board of trustees of such town, for approval; and such 
common council or board of trustees shall, by special committee 
thereof, and without expense to such property owner, carefully 
examine the said plat, and the territory platted, and shall have 
authority to approve or disapprove the same. And the county 
recorder is hereby prohibited from recording any such city or town 
plat Avithout the same be accompanied with the certificate of such 
town or city clerk, attested by the corporate seal, certifying that 
the plat has been approved by the common council or board of 
trustees, as the case may be. For any violation of this act the 



§3253^] CITIES AND TOWNS. [346 

recorder shall, upon conviction, be fined in any sum not more than 

three dollars. 

This section operates as a repeal of the act of 18S5 (Acts 1885, p. 150 ; El. Sup. 
§§ 824 and 825), and also of the act of 1889. (Acts 1889, p. 263 ; El. Sup. §§ 784 
to 786.) 

Petition Submitting Plat. 

To the Common Council of the City of .■ 

I herewith submit to you for your approval a plat of land, platted for the 
purpose of being attached to said city as an addition thereto, so that the same 

may be recorded in the recorder's office of county, Indiana. 

Dated , 18—. A. B. 

Resolution of Reference. 

Resolved, that the plat of an addition to this city submitted by A. B. 
be and the same is hereby referred to C. D., E. F., and G. H., members of this 
council, as a committee to carefully examine the same; and they are hereby em- 
powered to approve or disapprove it. 

Approval. 

We, C. D., E, F., and G. H., members of the common council of the 

city of , State of Indiana, appointed on the day of , iS — , by 

said council as a committee to examine and approve or disapprove the annexed 
plat of A. B., hereby certify that we have examined said plat and hereby 

approve it, and authorize the recorder of county, State of Indiana, to 

record the same in the records of his office. 

Dated , 18—. ' C. D., 

E. F., 
G. H. 
Committee's Report to Common Council. 

To the Common Council of the City of ; 

Your committee to whom was referred for examination the plat of 
an addition to this city submitted by A. B., hereby report that we have 
examined the same, and have duly approved it by indorsement thereon. We 
herewith return said plat duly indorsed as aforesaid. 

Dated — , 18—. C. D., 

E. F., 
G. H. 
Adoption of Committee's Report. 

Resolved, that the report of C. D., E. F., and G. H., approving the plat 

of A. B., submitted by him to this council on the day of , 18 — , be 

and the same is hereby adopted. 

Certificate of Clerk. 

State of Indiana^ County^ ss: 

I, L. X., clerk of the city of , of said State, hereby certify that 

the annexed plat has been presented to the common council of said city and dul v 
approved by a committee appointed by said council to examine the same, as 
appears by indorsement thereon, which approval was adopted by said council 

on the day of , 18 — ; and the recorder of said county is hereby 

authorized to record the same in the records of his office. 

Witness my hand and the seal of said city, this day of , 18 — . 

[Seal.] " L. X., 

City Clerk. 



I 



347] TAXATION. [§3254 

ARTICLE 3— TAXATION. 

SEC. SEC. 

3254. Bank-stock. 3260, Bank-stock, how valued. 

3255. Auditor's dutv. 3261. Agricultural lands, etc. 

3256. Auditor's statement. 3262. Assessment. 

32;;7. Assessment. 3263. State tax-law to govern — Proviso. 

325S. Collection of taxes. 3264. Non-resident's personal property. 

3259. Tax, a lien. 

[1S73, P- 214. Approved and in force March 4, 1873.] 

Sec. 3254. Bank-stock, i. The shares of capital-stock owned 
or held by any person or body corporate in any bank or banking 
association chartered or organized under the laws of this State, or 
chartered or organized under the laws of the United States, shall 
be taxed for municipal purposes by the corporate authorities of 
the incorporated towns and cities of this State in which any such 
bank or banking association may have its banking-house or place 
of business ; and such shares of stock shall be taxed by the corpo- 
rate authorities of the town or city in which such bank or banking 
association may be located, at the same rate as is or may be law- 
fully assessed by the corporate authorities of such town or city on 
other taxable property. 

1. See § 6350. The stock of the old State Bank could not be taxed by cities, 
16 Ind.105; 3 Ind. 43; 7^.393^395; 39 Ind.450; II Ind. 139. See 6 B. 349 (City 
of Evansville, 39 Ind. 450.) 

2. Formerly it was held that the stock held by non-residents, although the 
bank was located within the city, could not be taxed because the situs of the 
shares, for the purpose of taxation was the domicile of the owner, 14 Ind. 27 ; 15 
Ind. 150; 21 Ind. 261, 335 ; but afterwards the law was changed so as to allow 
the stock of non-residents to be taxed, and this was held to be a valid exercise 
of the constitutional powers of the legislature, 22 Ind. 204; 33 Ind. 107; 79 Ind. 
351; 33 Ind. III. Such stock is taxable, although taxed in the State where the 
owner resides, 79 Ind. 351. 

3. The stock is assessed in the name of the orvner thereof, 17 Ind. 48; 21 
Ind. 261; 15 Ind. 150. 

4. The bank must have been in existence and the stock issued by the first 
day of April to be taxable that year; and if organized after that date, or stock 
is issued thereafter, it can not be taxed for that year, 17 Ind. 48 ; 48 Ind. 568. 

5. The shares of National Banks may be taxed, although some branches of 
the State bank exist, the shares of which can not be taxed, 48 Ind. 568; 22 Ind. 
204; 33 Ind. 107, III. The authority to tax these shares is given by Congress, 
107 Ind. 206, 213. The real estate of such banks should be assessed for taxation 
as realty in the city or town where situated, and not as a part of the capital 
stock of the bank, 85 Ind. 341. 

6. The fact that the general tax law requires an officer of the hank to list tlie 
stock does 7iot render it tinconstitiitional, 33 Ind. 107. 

7. In the assessment and taxation of shares of stock of national banks, the 
owners thereof, if they have no other moneyed capital or credits from which to 
deduct X\\e\vbona Jide debts, are entitled to deduct them from the assessed value 
of such shares of stock, notwithstanding the provisions of the tax law of iSSi, 
107 Ind. 206; 105U. S. 322; 100 U. S. ^539; 113 U. S. 689, S. C. 20 Cent. L. Jr. 
309; III Ind. 240. If the assessor refuse to allow the deduction, and the citv 
treasure-r, the stock owner may recover whatever is unjustly assessed to and 
paid by him, iii Ind. 240. 



§§ 3255 3257] CITIES AND TOWNS. [348 

[18S1 S., p. 696. Approved and in force April 15, 1881.] 

Sec. 3255. Auditor's duty. 2. It shall be the duty of the audi- 
tor of every county m this State in which there is an incorporated 
town or city having within its corporate limits any bank or bank- 
ing association contemplated by the preceding section, on or before 
the first day of May in each and every year, to furnish to the 
mayor or other principal officer of such town or city, on the de- 
mand of such mayor or other principal officer, a certified copy, 
under his hand and seal of his office, of the sworn statement in 
writing which may have been delivered to him by the president or 
cashier of any such bank or banking association in pursuance of 
the provisions of the seventy-seventh section [§ 6345] of an act 
entitled "An act concerning taxation," approved March 29, 1881 ; 
which copy, so to be furnished by such auditor, shall be a copy of 
the sworn statement made and delivered, for the current year, to 
such auditor by such president or cashier, under the provisions of 
said section. 

Sec. 3256. Auditor's statement. 3. If no such sworn state- 
ment as contemplated by the foregoing section shall have been 
made and delivered to such auditor, then it shall be his duty to 
make and certify, under his hand and seal of his office, a full and 
true statement of all the information which he may have obtained, 
in relation to such bank or banking association, its stockholders, 
and the number and value of shares of stock held or owned by 
them respectively, by or under the proceedings prescribed by sec- 
tion seventy-eight [§ 6346] of an act entitled ' ' An act concerning 
taxation," approved March 29, 1881. 

The list of " stock " required is not the subscription of stock, but the actual, 
tangible property of the bank, 5 Ind. 310. 

[1873, p. 214. Approved and in force March 4, 1873.] 

Sec. 3257. Assessment. 4. On receiving the certified copy of 
the sworn statement mentioned in the second section of this act 
[§ 3255], or the certified statement mentioned in the preceding 
section, such mayor or other principal officer of such town or city 
shall file the same in the office of the clerk of such town or city; 
and the assessor or assessors, or other proper officer of such town 
or city, shall, from the information thus obtained, proceed to enter 
in the assessment-roll and tax duplicate of such town or city, for 
the current year, the names of the stockholders of such bank or 
banking association, and the number of shares and value of the 
stock held or owned by each stockholder respectively, and shall 
assess thereon to the owner or holder thereof the proper amount 
of corporation or municipal taxes according to the rate that may at 
the time be chargeable on other personal property subject to tax- 
ation by such town or city ; and if any such stockholder shall be 
assessed on said duplicate for either real or personal property, 



349] TAXATION. [§§ 3258—3261 

Other than such stock, the amount and value of his said stock shall 
be added to his assessment as personal property. 

Sec. 3258. Collection of taxes. 5. The taxes assessed under 
this act shall be paid by the owners or holders of such stock, re- 
spectively, in the same manner as upon other personal property. 
And all laws and ordinances in force in such town or city in rela- 
tion to the collection of taxes, and all penalties provided for the 
non-payment of the same, shall apply to the taxes assessed under 
the provisions of this act ; but nothing herein contained shall be 
construed to prevent the president, cashier, or other proper officer 
of any such bank or banking association from paying such taxes, 
and charging the amount so paid against the owner or holder of 
such stock, but such taxes may be so paid and charged, and the 
amount thereof may be deducted from any dividends on such stock 
which have or may be declared thereon. And on notice given by 
the proper collecting officer of such town o'' city that any such 
taxes have not been paid when due, the same shall be paid by the 
president, cashier, or other proper officer of such bank or banking 
association out of any dividends due or to become due on such 
stock. 

Sec. 3259. Tax, a lien. 6. Taxes assessed upon any share or 
shares of bank-stock under the provisions of this act shall be and 
remain a lien against such stock until the payment of such tax; 
w^hich lien shall attach on the first day of April of each year for 
w^hich the assessment is made; and every transfer of such stock 
shall be subject to such lien. 

Sec. 3260. Bank-stock, how valued. 7. In making the assess- 
ment and ascertaining the value of any shares of bank-stock under 
the provisions of this act, there shall be deducted, from the gross 
cash value of such shares, the proper proportionate part of the 
value of any real estate held or owned by any such bank or bank- 
ing association in this State, and taxed under the laws thereof, in 
which any part of the capital-stock of such bank or banking asso- 
ciation may be invested ; and in making such deduction, the valua- 
tion of such real estate for taxation shall be the criterion. 



[1881 S., p. 698. Approved and in force April i6, i88i.] 
Sec. 3261. Agricultural lands, etc. i. Lands lying within the 
Hmits of any city or incorporated town in this State, that are not 
platted as city or town property, and are not used for other than 
agricultural purposes or are wholly unimproved, together with all 
personal property used for the purpose of farming on such lands, 
shall not be taxed in said city or town, for all purposes, at a higher 
aggregate percentage upon the appraised value thereof than the 
aggregate percentage of the tax levy in the civil township where- 



§ 3262] CITIES AND TOWNS. ' [35O 

in such property is situated: Provide d^ however, That the provis- 
ions in this act shall not apply to parcels of land containing less 
than five acres. 

1. This section has been expressly repealed^ acts 1891, p. 358, but we give it 
in full with the notes. The act of 1891 contains a saving clause as to pending 
litigation and right of litigants. This section did not apply to street imfrove- 
ments^ 34 Ind. 497. 

2. The/r^x'/.TiJwas valid, ^o Ind. 491 ; 69 Ind, 344. There is no constitutional 
provision restraining the power of the legislature to confer upon cities and towns 
the unlimited authority to tax all property within their limits, 59 Ind. 225. 

3. For construction of earlier statutes, see 40 Ind. 491; 58 Ind. 130. For- 
merly a school tax could be levied on such property, but not a tax for general 
city or town purposes, 69 Ind. 344. 

4. Any one claiming exemption from taxation under this section had to bring 
himself fully within its provisions; ior \X.\N2i'&cojistrued strictly, d^^lxi^L.T^w; 8 Ind. 
328; 58 Ind. 130. 

5. The unplatted land used for agricultural purposes was subject to the general 
burden of state and county taxes, and also the -city school tax, and such special 
assessments as aiTect it in common with other city property; but it was subject to 
taxation by the city or town for general city purposes only to an amount equal 
to that imposed upon property in the civil township for general township 
purposes, 106 Ind. 375. Such lands were subject to all special assessments which 
affect them in common with other property of the city or town, 112 Ind. 178 ; 69 
Ind. 344. 

6. By an act of the legislature, of January 8, 1847 (Local Laws 1847, p. 217), 
the South Bend branch of the State Bank was authorized to lay off into out-lots 
a tract of land owned by it, adjoining the town of South Bend, the act expressly 
providing that the lots should not be a part of the town of South Bend, or within 
its jurisdiction. After the town was incorporated as a city the corporate limits 
were extended so as to include the property thus platted within the corporate 
limits. Each of the lots in question contained more than five acres, and were 
only for agricultural purposes. It was held by the supreme court that the lots 
were not platted as town or city property, and under this section Avere not liable 
to be taxed jij excess of the township levy in which the lands were situated, 123 
Ind. 290. 

[1879, p. 15. Approved and in force March 10, 1879.] 

Sec. 3262. Assessment, i. The office of assessor in cities may 
be, and in incorporated towns in this State shall be, abolished, and 
the assessment* of personal and real property, as made and returned 
by the township assessors to the county auditor, as is now provided 
by law in cities, may, and in incorporated towns shall, constitute 
the assessment for taxation for city and town purposes, in like 
manner as for county and state taxes. And the city and town 
clerks shall have access to the assessor's books in the county au- 
ditor's office, and they shall transcribe, therefrom, on their tax 
duplicates, an accurate list of the taxable property assessed in 
each city and town, as it appears to have been equalized by the 
^' county board of equalization, and thereon compute the taxes 
levied by the city and town authorities. 

I. The office of city assessor and the city board of equalization is now abol- 
ished, §3160. See 61 Ind. 29. The county appraisement becomes the basis of the 
assessment of city taxes; and the council has no authority to add to the appraise- 
ment thus adopted, by way of equalizing the same or otherwise ; and it makes 
no difference that the copy of appraisement was made before the board of revisors 
met, 64 Ind. 421. 



35 1] TAXATION. ■ [§§ 3263, 3264 

2. There can be no levy of taxes bj a town until the county board of revisOrs 
has acted; and this section modifies § 3348 with respect to the time a levy 
shall be made by the town, 82 Ind. 493; i04lnd.363. The same would be true of 
a city. 

[1881 S., p. 697. Approved April 16, i88i,and in force September 19, 1881.] 

Sec. 3263. State tax-law to govern — Proviso. 2. Hereafter all 
general laws of the State for the uniform assessment and collection 
of taxes, and matters connected therewith or growing out of the 
same, shall apply to all incorporated cities and towns not having 
special charters, so far as the same shall be applicable: Provided, 
That all city taxes not paid on or before the third Monday of April 
in each year shall then become delinquent : Provided, further, 
That nothing herein contained shall be held or construed to prevent 
cities from exercising their discretion as to making assessments by 
city assessors instead of by county commissioners [township 
assessors]. 

1. Assessments, and collections of taxes in cities and towns prior to March 
9, 1875, were legalized by an act of 1875 (p. 145). 

2. See a similar statute. § 3160, and notes thereon. The office of city 
assessor is now abolished, § 3160. This section did not authorize a /r/tY//^ sale 
hy a tov.-n marshal, even though the county auditor could at the time make a 
private sale for county taxes, 70 Ind. 536, Nor does it change the law concerning 
the compensation of the city or town treasurer, 74 Ind. 133. But it so far adopts 
the state law as to make the pejialfies due on land sold by the city apply to it, 
85 Ind. 481. So in an action to quiet title on a county or state tax deed, the 
amount of city tax due on the land may be allowed and decreed a lien thereon, 
if the sale is invalid, 104 Ind. 498. The city authorities must take the valuation 
of the right of'-ivay of a railroad from the state board of ireview, and can not 
assess buildings or such right of way, 108 Ind. 144. Taxes levied by cities and 
towns are in effect levied by the State, and are not inferior in rank, dignity, or 
priority to taxes levied for state or county purposes, loi Ind. 326 ; but the lien 
is inferior to the lien of the State when the State's tax lien is foreclosed in court 
at the suit of the prosecuting attorney, § 6491. 

[1881 S., p. 696. Approved and in force April 15, 1881.] 

Sec. 3264. Non-residents' personal property. 3. All personal prop- 
erty, notes, bonds, or other evidences of debt, which are or may 
be in the hands of any resident of any town or city, as guardian 
of persons not residing therein, or as executor or administrator of 
the estate of a person who did not reside therein, and in which 
such guardian, executor, or administrator has no beneficial interest, 
shall not be subject to taxation by such town or city for munic- 
ipal purposes. 

See 83 Ind. 211. 



3265] CITIES AND TOWNS. [352 



ARTICLE 4— WATER-WORKS. • 

SEC. SEC. 

3265. May issue water-works bonds — Vote. 3274. Application of fund. 

3266. Location and condemnation. 3275. Reports. 

3267. Assessment and report. 3276. Funds, how kept. 

3268. Tender of damages. 3277. Contracts. 

3269. Appeal. 3278. Investigating- committee. 

3270. Trustees of water-works. 3279. Water free for public uses. 
3270^. Board in cities and towns of 5,000 3280. Attachments regulated. 

abolished. 3281. Advertising. 

3270/;. How duties of board performed. 32S2. Bonds. 

3270C. Repealing clause. 3283. Tax, to pay loans. 

3271. Duties and pay of trustees. 3284. Lien of tax. 

3272. By-laws and rules. 3285. Preventing pollution. 

3273. Water-rents. 

[1879 S., p. 88. Approved and in force March 25, 1879.] 

Sec. 3265. May issue water-works bonds — ¥ote. i. The com- 
mon council of any city or board of trustees of any incorporated 
town having a population of less than forty-five thousand, which 
shall, by ordinance or resolution, decide to erect water-works, or to 
make extensions or im.provements where works have heretofore 
been constructed, are hereby authorized, for the special purpose of 
furnishing the inhabitants of such city or town with pure and 
wholesome water and for fire protection, to issue bonds of such 
city or town, in denominations not less than fifty nor more than 
one thousand dollars, and payable at any place that may be desig- 
nated in the bonds, the principal in not less than five years nor 
more than twenty years after the date of such bonds, and the in- 
terest annually or semi-annually; and such council or trustees may, 
from time to time, negotiate and sell as many of such bonds as 
may be necessary for such purpose, in any place. and for the 
best price that can be obtained therefor in cash : Provided, That 
such bonds shall not be sold at a price less than ninety-four cents 
on the dollar : Provided, That the common council of any city or 
town trustees of any incorporated town, contemplating building 
water- works under this act, shall, before actually embarking therein, 
submit the question to the qualified voters thereof, at a special or 
general election; and voters desiring water-works may vote, ''For 
water-works," or, if opposed, "Against water- works." Such elec- 
tion may be ordered upon a petition of one hundred freeholders 
and resident tax-payers of such city or incorporated town ; and in 
no case shall the common council of any city or town trustees of 
any incorporated town erect water-works except upon a majority 
of all the votes cast at such election upon the said question of 
v/ater-works, as provided for in this act. Such bonds shall be 
issued under the provisions of the present law regulating the issue 
and sale of bonds, so far as the same can be made applicable: 
Provided, however. That the provision of said act that the entire 
money borrowed by a city shall not at any time exceed two per 
cent, of the taxable property of such city shall not apply to this 
act: Provided ficrther, That notice of such election, and submis- 
sion of said question of water-works thereat, shall be published for 



353] WATER- WORKS. [§ 3265 

three weeks successively before the day of such election, in some 
newspaper printed and pubHshed in such city or town, and of gen- 
eral cirQulation therein ; which said notice shall be signed by the 
clerk of such city or town. 



NECESSARY STEPS. 



The following are the necessary steps, in the order in which they should be 
taken: 

1. Petition of one hundred freeholders and resident tax-payers for an elec- 
tion and the order for an election thereon, § 3265. 

2. Election resulting in favor of the erection of water-works, § 3265. 

3. Location of water-works. 

4. Appointment of three commissioners who take an oath, § 3266. 

5. Ten days' notice by the council to the commissioners of the appointment 
to be made, with a description of the premises to be viewed, and a like notice to 
the land-owners, § 3266. 

6. View of the premises by the commissioners, estimate of damages, and 
report thereof to council, § 3267. 

7. Acceptance of report within twenty days (§ 3269) by council and tender 
of damages, § 3268. 

8. Any ^land-owner aggrieved may appeal within thirty days on filing a 
bond, § 3269. 

9. Establishment of a board of three trustees for the water-works, to be 
elected at the next general election, § 3270. This board may be established as 
soon as the erection of water-works is determined by the election of the people, 
or after the water-works are in progress of erection or completed. 

10. Qualification and giving bond by the trustees, § 3271. 

NOTES. 

1. See § 3106, clause 26, and notes. For incorporation of a private water- 
works company, see R. S. 1881, § 4200 to 4203, and Acts 1889, p. 195 ; El. Sup. 
§§ 1130-1140. 

2. Where a city negotiated bonds to raise means to construct water-works, 
and the city treasurer misapplied the funds so realized, leaving debts unpaid on 
account of said works, it was held competent for the city council to issue and 
sell other bonds to make up the deficiency, 49 Ind. 169. While it is the duty of the 
city council or town trustees to issue and sell the bonds, yet if the city or town 
treasurer sell them and receive the funds thereby raised, he must account for 
them, and his bondsmen are liable if he does not ; and this is true even though 
the sale is made by the council or board, if he receives the funds. The duty of 
the council or board to issue, negotiate and sell such bonds is one which they 
can not, either by ordinance, resolution or otherwise, delegate to or confer upon 
the city treasurer or any other ofiicer or person. If they attempt thus to appoint 
the treasurer, he acts merely as their agent, and is not liable on his bond for the 
mere sale, assignment and delivery by him of such bonds, pursuant to such 
agency, 63 Ind. 155. 

3. This statute does not repeal clause 26 of § 3106, 86 Ind. 484. 

4. So far as applicable, the election law of 1889 controls these elections, 
§ 47IO//2. 

5. An act of 1865 (Acts 1865, p. 105) authorized the incorporation of water- 
works companies for supplying cities and towns with water; but this act was 
repealed in 1879. (Acts 1879, p. 14.) 

23 



§ 3266] CITIES AND TOWNS. [354 

Petition. 

To the Common Council of the City of .■ 

The undersigned, one hundred freeholders and resident tax-payers of 
said city, pray that said city construct water-works, under an act entitled " An 
act to authorize cities and incorporated towns to construct, maintain and oper- 
ate water-works ; issue and sell bonds to pay for such construction, repealing 
all laws in conflict therewith, and declaring an emergency," approved March 
25, 1879, and that an election be called of the qualified voters of said city to 
determine whether said water-works shall be constructed by said city. 
[Signed.] 



Resolution of Submission. 

Whereas, the following petition has been presented to this council, viz.: 
\Set it out %vith the names\ ; and 

Whereas, this council iinds that said petition Avas signed by at least one 
hundred freeholders and resident tax-payers of this city, therefore 

It is hereby ordered that an election be held in this city, at the usual voting 

places, between the hours of 6 a. m. and 6 p. m. on the day of , 

18 — , and that the proposition of building said proposed water-works by the 
city shall then and there be submitted to the qualified voters of this city. 

Election Notice. 



Notice is hereby given to the qualified voters of the city of 



Indiana, that, pursuant to an order of the common council of said city, of the 
day of ,18 — , an election will be held at the usual voting places there- 
of, between 6 a. m. and 6 p. m. on the day of , iS — , for the purpose 

of determining whether said city shall construct water-works, in accordance 
with the provisions of an act of the general assembly of the State of Indiana, 
entitled "Arl act to authorize cities and incorporated towns to construct, 
maintain and operate water- works ; issue and sell bonds to pay for said con- 
struction, repealing all laws in conflict therewith, and declaring an emergency," 
approved March 25, 1879. 

[Corporate Seal.] A. B., 

Clerk of the City of . 

Election Returns. 

The undersigned, inspector and judges of precinct number , of 

the city of , State of Indiana, at an election held in said city on the 

day of , 18 — , between the hours of 6 a. m. and 6 p. m., pursuant 

to an order of the common council of said city, for the purpose of determining 
whether the said city should build water-works pursuant to the act of March 25, 
1879, the following was the result of the election in said precinct, to Avit: 

Number of ballots cast " for water-works," 

Number of ballots cast " against water-works," 

Majority " for water-works," 

Dated, , 18—. A. B., 

Inspector. 

CD., 
E. F., 

Judg-es. 

Sec. 3266. Location and condemnation. 2. The common coun- 
cil of any city or board of trustees of any incorporated town, 



355] WATER-WORKS. [§3266 

which shall so determine to build water-works, or to make exten- 
sions of such water-works where they have heretofore been con- 
structed or commenced, shall have authority to locate such, works 
with all appendages, and lay such lines of pipe as maybe required. 
And in case the use of any lands, town lots, water-rights, or ease- 
ments ; or use of any water from any pool, lake, or natural stream 
of water, or if such pool, lake, or natural stream of water shall be 
found necessary for the building, maintaining, or operating of such 
works, it shall be lawful for such common council or board of 
trustees, by themselves or agent, to enter upon and take possession 
of and condemn the same for these uses, and, for the supply with 
water, of any conduit pipes, stand-pipes, storage reservoirs, and set- 
tling and filtering basins. No artificial provision made for water 
by any person or corporation, or owned by any person, association, 
or body, shall be used or condemned without consent of the 
owner: Provided, That any such lands, town lots, water-rights, 
easements, pools, lakes, and natural streams of water shall not be 
used for any other purpose than for the use of said water-works. 
For the purpose of such condemnation and use, such common 
council or board of trustees shall have jurisdiction for ten miles 
beyond the limits of such city or town. Provided fiuiher, That 
before such common council or board of trustees shall proceed to 
take possession of such lands, lots, water-rights, easements, pools, 
lakes, and natural streams of water, for the purpose above men- 
tioned, they shall appoint three commissioners, residents of such 
city or town, who shall be disinterested freeholders, to appraise 
and assess the damages accruing to the owners of any lands, lots, 
water-rights, easements, pools, lakes, and natural streams of water, 
so taken and condemned for said work. Said commissioners shall, 
before they proceed to perform their duties as appraisers, take and 
subscribe an oath orafifirmation faithfully to perform all their duties 
as such appraisers (which shall be indorsed upon or attached to 
their appointment), and file the same with the clerk of such city 
or town. Ten days' notice shall be given such commissioners by 
said council or board of trustees, through the city or town clerk, 
of the appraisement to be made, giving a complete description 
of the premises to be viewed. A like notice shall be given by 
personal service, or by leaving the same with some person of 
suitable age at their places of abode, to each of the owners or 
agents of lands, lots, water-rights, easements, pools, lakes, or 
natural streams to be so taken for such water-works, as in civil 
cases. If the owners are unknown or non-residents of this State, 
publication of the same in one or more newspapers of the town, 
of general circulation, or by posting up written or printed notices 
in six public places in such city or town (if there be no newspaper 
published therein) for three weeks, shall be deemed equivalent to 
such personal service. 



§ 3266] CITIES AND TOWNS. [SS^ 

Resolution of Appropnation. 

Whereas, on the day of . 18 — , a petition was presented to 

this council, signed by at leas' one hundred ireeholders and resident taxpayers 
of this city, praying that water-works be erected pursuant to the act of March 
25, 1879, authorizing a city to build the same , and 

Whereas, pursuant to the prayer of said petition an election was ordered by 

this council on the day of , 18 — to be held at the usual voting 

places within said city on the day of , 18 — , between the hours of 

6 a. m. and 6 p. m., for the purpose of determining whether the city should 
build water-works, of which election notice was duly given ; and 

Whereas, as appears by the certificates of the election boards of the several 

precincts of this city that there was cast ballots for the construction of 

said water-works and only ballots against their construction, there being 

a majority of in favor of such construction ; and 

Whereas, this council has determined to build said water- works, and issue 
bonds in payment thereof; and 

Whereas, by examination and survey it has been found that the following 
described property is suitable and necessary for the construction of said water- 
works, to wit: [Describe it\ and 

Whereas, a right of way and consent for the laying of pipes from said prop- 
erty to this city across the following described lands, in the following courses 
and distance, is essential and necessary in order to construct said water-works, 
viz.: [Describe the right of -way], therefore 

It is resolved that said property as above described be and the same is hereby 
appropriated and condemned by this city for the purpose of building and main- 
taining said water-works ; and the right of way, as above described, is also here- 
by appropriated and condemned for the purpose of conducting the water from 
said property to this city. 

The following disinterested freeholders and residents of this city are hereby 
appointed to appraise and assess all damages accruing to the owners of said 
property and right of way hereby appropriated and condemned for said water- 
works, viz.: A. B., C, D.;^ and E. F. 

Certificate of Appointment. 

I, X. L., clerk of the city of , State of Indiana, hereby certify 

that A» B. was duly appointed by the common council of said city on the 

day of , 18 — , a commissioner for the purpose of appraising and 

assessing the damages accruing to the owners of lands and property covered by 
the appropriation thereof by said council for the purpose of erecting water- 
works for said city under an act of the general assembly of the State of Indi- 
ana, approved March 25, 1879 '■> which property is fully described in the order 

of appointment entered of record in the records of said city in journal No. , 

pages . 

In testimony' whereof, I have hereunto set my hand and seal of said city 

this day of , 18 — . 

[Corporate Seal.] X. L., 



Clerk of the City of - 



Oath. 



State of Indiana ^ County of , -.<?.?. 

I, A. B., do solemnly swear that I will faithfully and impartially ap- 
praise and assess all damages accruing to the owners of any lands, lots, water- 
rights, easements, pools, lakes, and natural streams of water taken and appropri- 
ated by the city of , for the purpose of constructing water- works, under 

its order of appropriation of the day of , 18 — , and will faithfully 

perform all my duties appertaining thereto. So help me God. 

A. B. 

Subscribed and sworn to before me this day of , 18 — . 

[Seal.] L. U., 

Notary Public. 



357] WATER-WORKS. [§ 326/ 

Notice to Commissioners. 
To A. B., C. D., and E. F.: 

You are hereby notified that on the day of , 18 — , you were 

selected commissioners by the common council of the city of , State of 

Indiana, to appraise and assess all damages accruing to the following described 
property, owned by the persons as stated below, which has been appropriated 
and condemned by said city, allifor the purpose of building water-works for said 

city, situate in the county of , and State of Indiana, viz.: [Describe it and 

give names of ozuners thereof.] 

X.L., 

Clerk of the City of . 

Notice to Land-Owners. 

To [itamitig each o-cvner]: 

You are hereby notified that upon the day of ■ , 18 — , the 

common council of the city of , State of Indiana, by a resolution, appro- 
priated and condemned the following described properties and easement, under 
an act of the general assembly of the State of Indiana, approved March 25, 1879, 
for the purpose of building and constructing water-works for said city, viz.: 
\ Describe them\ Said common council appointed A. B., CD., and E. F. com- 
missioners to appraise and assess the damages accruing to the owners of the 

above described property; and they will meet at 10 a. m. on the day of 

, 18 — , in the council chamber of said city for that purpose. 

X. L., 

Clerk of the City of . 

[This notice can be served by the city marshal.] 

Sec. 3267. Assessment and report. 3. Such commissioners, or 
a majority of them, shall, at the place and time indicated in such 
notice, proceed to an examination of such lands, lots, water-rights, 
easements, pools, lakes, and natural streams so desired to be taken 
or condemned for the use of such water-works ; and shall then and 
there estimate the damages accruing to the owner. They shall 
view the premises and receive any evidence touching the questions 
before them ; and may, for that purpose, administer oaths to wit- 
nesses examined in relation thereto. They shall make a report 
in writing of the amount of damage, if any, accruing to each 
owner, and, within ten days thereafter, file the same with the 
clerk of such city or town. 

Report. 

To the Common Council of the City of -.* 

The undersigned, commissioners appointed by your honorable body by 

a resolution of the day of , i8 — , for the purpose of appraising 

and assessing damages caused by the appropriation of certain properties and 
lands therein mentioned, report as follows, viz.: Pursuant to the notice given by 
the city clerk they met in the council chamber of said city at lo a, m. on the 

da}^ of , 18 — , and went and viewed the premises described in the 

notice given them by the city clerk and received all evidence oftered touching 
the matters before them. After full consideration they appraised and assessed 
the amount of damages due each of the landed property owners, as given below, 
viz.: 



Name of Owner. 



Amount of Damaffes. 



§§ 3268, 3269] CITIES AND TOWNS. [358 

Thev ask an allowance of dollars each per day for the days 

they were engaged in making said appraisement and assessment. All of whicn 
is respectfully submitted. 

A. B., 
C. D., 
E. F., 

Commissioners. 

Sec. 3268. Tender of damag-es. 4. When such report is filed, 
as in the preceding section required, the common council or board 
of trustees (if they accept the assessment so made) shall tender or 
cause to be tendered to the owner of such lands, lots, water-rights, 
easements, pools, lakes, or natural streams, or their heirs or repre- 
sentatives, the damage awarded by such commissioners ; or if not 
found within the city or town, or if the award is not accepted, then 
the same shall be kept by the treasurer as a special deposit, subject 
to the order of such owner or his heirs or representatives. 

Sec. 3269. Appeal. 5. The common council or board of trus- 
tees shall, within twenty days from the filing of said report, either 
accept or reject the terms of the same in whole or part. And all 
parties aggrieved by such report may appeal therefrom, at anytime 
within thirty days after the filing thereof, to the circuit court of 
the county, upon filing the usual bond with the clerk of such city 
or town for the payment of costs; but no such appeal shall prevent 
any such city or town from proceeding with said appropriation, 
construction, and improvement, as if no appeal had been taken. 
No other question shall be determined than the regularity of the 
proceedings in the suit and the amount of damages sustained. 

Resolution of Acceptance and Appropriation. 

Resolved, that the report filed with the city clerk on the day 

of , 18 — , by A. B., C. D., and E. F., commissioners appointed to appraise 

and assess damages caused by the appropriation of land and property respect- 
ively belonging to [set out the naine of each person to ivhom benefits are assessed], 
be and the same is hereby accepted, and the city treasurer is hereby directed to 
tender to each individual the amount of benefits to which he is entitled as 
shown by said report; and there is hereby appropriated out of the city treasury 
the sum of dollars for that purpose. 

Appeal Bond. 

We, X. L., R. S., and T. U., acknowledge ourselves bound unto the city of 

, State of Indiana, in the penal sum of dollars. Witness our hands 

and seals this day of , i8 — . 

Whereas, said city has appropriated the following piece of land belonging to 
said X. L., for the purpose of erecting water-works, to wit: [describe it], and A. 
B.,C. D.,andE. F., commissioners appointed by said city forthat purpose, within 
the last thirty days filed a report of the appraisement of damages by reason of 
such appropriation, from which report and proceedings said X. L. has appealed 

to the circuit court ; 

Now, if said X. L. shall prosecute his appeal to final judgment, and pay such 
judgment as may be rendered against him on such appeal, this bond shall be 
void, else in force. 

X. L., [Seal.] 

R. S., [Seal.] 

. T. U. [Seai.] 



359] WATER-WORKS. [§ 3270 3270<; 

Sec. 3270. Trustees of water-works. 6. The common council 
of any city or incorporated town in which water-works have been 
constructed or are now in process of construction or extension, or 
where water-works shall hereafter be ordered, shall establish aboard 
of three trustees, to be known as the trustees of the water-works. 
Said trustees shall be elected at the annual city election by the 
qualified voters of such city or incorporated town, and shall hold 
their office for the term of three years ; except that, at the first 
election under this act, one shall be chosen for one year, one for 
two years, and one for three years, and thereafter, one of the trus- 
tees shall be elected annually. 

1. In order to elect water-works trustees it is not necessary that the city 
council or town board first establish such a board, nor is notice of an election 
to elect them necessary, after it has been decided to put in water-works, 69 Ind. 
218. For debts incurred for water furnished a city or town, prior to the appoint- 
ment and qualification of a board of water-works trustees, the citv council or 
town board may issue warrants to the city or town treasurer, 86 Ind. 184;- 

2. In small cities and towns the board of trustees is abolished. See 
§ 3270a. 

Ordinance Establishing Board of Water-Works Trustees. 

Whereas, this city of is now engaged in constructing water- 
works under an act of the general assembly of the State of Indiana, approved 
March 25, 1879, therefore 

Be it ordained by the city of that there be and there hereby is estab- 
lished and created a board of water-works trustees, to be known as "The Board 

of Water-Works Trustees of the City of ," consisting of three members, 

to be elected at the annual city elections by the qualified voters of this city, 
and to hold their oflices for the term of three years from the date of their elec- 
tion ; provided^ that at the next annual election one shall be chosen for one 
year, one for two years, and one for three years, and thereafter one of the 
trustees shall be elected annually. 

[1891, p. 64. Approved March 3, 1891, and in force June 3, 1891.] 

Sec. 3270(^. Board in cities and towns of 5,000 abolished, i. The 

office of and board of water-works trustees in cities and incorporated 
towns of less than five thousand population be and the same are 
hereby abolished. 

Sec. 3270^. How duties of board performed. 2. In cities and 
incorporated towns of less than five thousand population, having 
water-works established, or in which water-works may be here- 
after constructed or established, the city common council, or the 
trustees of incorporated towns, may construct, conduct, manage 
and control their own respective water-works, and may appoint 
such agents, employes or committees of councilmen or town trus- 
tees, to manage and conduct the same as the common council, or 
town trustees, shall deem necessary or proper, and for such com- 
pensation as may be agreed on, or shall be fixed, by the common 
council or town trustees. 

Sec. 3270r. Eepealing clause. 3. All laws, or parts of laws, 
in conflict herewith are hereby repealed. 



§§ 3271 3275] CITIES AND TOWNS, [360 

[1879, p. 88. Approved and in force March 25, 1879.] 

Sec. 3271. Duties and pay of trustees. 7. Said trustees shall 
receive such compensation as the common council or board of 
trustees may determine ; and shall give bond in such sum as the 
common council or board of trustees shall order, for the faithful 
performance or their duties and the strict accounting for any funds 
that shall come into their hands ; and they shall manage, conduct, 
and control the works, furnish supplies of water, collect w^ater-rents, 
appoint all necessary officers and agents and determine the tenure 
of office, and amount of salaries of the officers and agents so 
appointed. 

The common council or board of trustees have nothing to do in prescrib- 
ing the power and duties of the water-works trustees, 69 Ind. 218, 226. If 
the citj council or town board fail to fix the amount of the bond required of the 
water-works trustees, thej maj be compelled to do so by mandate, 69 Ind. 218. 

Sec^ 3272. By-laws and rules. 8. Said trustees snail be author- 
ized to make such by-laws and regulations as they may deem 
necessary for the safe, economical, and efficient management and 
protection of the water-works ; and such by-laws and regulations 
shall have the same validity as ordinances, when not repugnant 
thereto or to the constitution and laws of the State. 

The board of water-works trustees credit, allow and direct the payment of 
claims against the water-works ; but for debts contracted prior to the appoint- 
ment and qualification of the board, the city council or town board, under § 3270, 
may issue warrants on the city or town treasurer, 86 Ind. 184. 

Sec. 3273. Water-rents. 9. For the purpose of paying the ex- 
penses of managing and operating the water-works, the trustees of 
the water-works shall have power to assess and collect, from time 
to time, a water-rent of sufficient amount, in such manner as they 
may deem most equitable, upon all tenements and premises sup- 
plied with water, and from manufacturing establishments and rail- 
road shops, and for the supply of boilers, locomotive engines, and 
for all other purposes tending to increase the income of the works. 

Sec. 3274. Application of fund. 10. Should there be any sur- 
plus money after paying the expenses of operating the water-works, 
the sum may be applied to the repair, enlargement, or extension 
of the works or of the reservoirs, the payment of the interest of 
any loan made for their construction, or for the creation of a sink- 
ing fund for the liquidation of the debt. 

Sec. 3275. Reports. 11. The trustees of the water-works shall 
make monthly reports to the common council or board of trustees 
of the receipts and disbursements of money belonging to the water- 
works, and an annual report of the condition of the same ; and all 
money coUected for water-works purposes, they shall cause to be 
deposited, weekly, with the treasurer of the city or town ; and the 
receipt therefor shall be, by such collectors, deposited with said 
trustees or their authorized agent. 



361] WATER- WORKS. [§§ 32/6 3280 

Sec. 3276. Funds, how kept. 12. All moneys so deposited 
shall be kept a separate and distinct fund, subject to the order of 
said trustees. And all orders drawn by said trustees on the 
treasurer of the city or town shall be signed by at least two of the 
trustees, and countersigned by the clerk of the water- works. 

The order should show on its face that it is issued bj the board, otherwise 
the treasurer is not bound to pay it, 35 Oh. St. 69. 

Sec. 3277. Contracts. 13. Said trustees shall be authorized 
to make contracts for the erection of water-works buildings, and 
construction of settling basins and other appendages, and the 
enlargement and repairs thereof; for the purchase of machinery 
and the manufacture and laying down of pipe; for the furnishing 
and supplying with connections of all necessary fire-hydrants for 
fire department purposes, and for keeping the same in repair; and 
for all other purposes necessary to the full and efficient manage- 
ment and construction of the water-works; and such contracts 
shall be subject to the ratification by the common council [or 
board of trustees]. 

The city is liable to any one injured by a contractor in the construction of 
the water- works, 70 Ind. 65. 

Sec. 3278. Investigating* committee, 14. The common coun- 
cil or board of trustees of any city or incorporated town in which 
water-works are or may be situated or in process of construction, 
shall be authorized to appoint a committee of investigation of all 
books and papers together with all matters pertaining to the 
management of the water-works, at least once a year, and oftener, 
if necessary by reason of any neglect of duty or malfeasance on 
the part of any officer of the works ; and any officer of the works 
found, by said committee, so offending shall be liable to removal 
from office by the council [or board of trustees]. 

The city council may remove a city officer even though he is not elected by 
them. It has full power to inquire^into the truth of charges of malfeasance in 
office, preferred against trustees of water- works, and to remove any or all of 
them jfor cause; and a court will not enjoin the council from proceeding to 
hear and investigate charges preferred against them, and from removing them 
from office, 119 Ind. 481. 

Sec. 3279. "Water free for public uses. 15. No charge shall be 
made by the trustees of the water- works for supplying water for the 
extinguishment of fires, or for furnishing and supplying connect- 
ions for fire-hydrants, and keeping the same in repair for fire 
department purposes; or for the cleansing of market-houses; or 
for the use of any public buildings belonging to the city or town ; 
or for flushing out sewers or other sanitary purposes. 

Sec. 3280. Attachments regulated. 16. All attachments of what- 
ever nature made to the water-pipes or other fixtures belonging to 
the water-works, and intended for public use, shall be subject to 



§§ 3281 3 -''8 5] CITIES AND TOWNS. [362 

the same supervision, rules, and regulations as are made for the 
protection of water-works against abuse, destruction, and inordi- 
nate or unnecessary use or waste of water ; or the trustees may 
make general or special rules and regulations for such purposes. 

Sec. 3281. Advertising-. 17. Said trustees, before entering in- 
to any contract for v/ork to be done, shall cause two weeks' notice 
to be given in one or more daily newspapers of general circulation 
within the city or town, that proposals will be received by the 
trustees for performing the work, or the several parts of the same 
specified in said notice ; and the trustees shall contract with the 
lowest bidder, if in their opinion said lowest bidder can be depended 
on to do the work with ability, promptness and fidelity; which 
contract shall be subject to ratification by the common council [or 
board of trustees], as heretofore provided. But if such be not the 
case, said trustees may give the contract to the next lowest bidder, 
or decline to contract, and re-advertise. Or if no daily newspaper 
be published in such city or town, then such notice shall be pub- 
lished three vv^eeks consecutively in a weekly newspaper of general 
circulation within such city or town. 

Sec. 3282. Bonds. 18. Said trustees shall require bond to be 
given, with good and sufficient security for the faithful performance 
of the work ; but no member of said board of trustees shall be such 
security ; nor shall any trustee be a contractor, or in any wise, either 
directly or indirectly, be interested in any such Avork to be con- 
tracted for. Such bonds shall be submitted to the common coun- 
cil [or board of trustees] for approval. 

Sec. 3283. Tax to pay loans. 19. For the purpose of paying 
the principal and interest on the money borrowed for the erection 
andcompletionof any water-works or for the extension or improve- 
ment of such works, a tax of sufficient amount shall be assessed 
on all the taxable property of the city or incorporated town, and 
collected, each and every year, in the usual manner of levying and 
collecting taxes in the city or town : Provided, always, The additional 
special tax hereby authorized shall not, in any year, exceed fifty 
cents on each one hundred dollars of taxable property and one 
dollar on each poll. 

Sec. 3284. Lien of tax. 20. The said tax, when levied and 
assessed, shall be a lien upon the property upon which it is levied 
and charged against the owners thereof, and shall be placed on the 
city or town duplicate in a separate column thereof, and be col- 
lected as other taxes. 

Sec. 3285. Preventing pollution. 21. The jurisdiction of any 
city or incorporated town owning water-works shall extend, for the 
purpose of preventing and punishing any pollution of the water, 
five miles beyond the corporation limits : Provided^ If any person 



SEC. 




SEC. 


32S6. 


Convevance bv county board. 


3290 


3287. 


Contro"]. 


3290^ 


328S. 


Po^ver to protect. 




32S9. 


May vacate. 


3291 



363] CEMETERIES. [§ 3286 

owning a water-power or mill property within the limits herein 
prescribed, in the use or management of which any stream is pol- 
luted to such an extent that the water thereof is thereby rendered 
unfit for use for such city purposes, such property or water-power 
may be condemned for the benefit of such city ; but, before -the 
same is done, such mill property shall be appraised by three disin- 
terested resident freeholders of the county in which such property 
is situate, one of whom shall be selected by such trustees, one by 
the owner of such property, which two shall select a third. Said 
appraisers shall appraise such property as its fair cash value ; and 
upon the tender of the same by the city [or town], and refusal by 
the mill-owner to accept the value appraised as aforesaid, such 
business m.ay be enjoined in any court of competent jurisdiction. 

On extension of jurisdiction, see § 3154, and ?iotes. 



ARTICLE 5— CEMETERIES. 



Petition and finding-. 
3290^. Gift or purchase — Expense of removing 
bodies. 

Removal and. re-interment. 
3292. Title not affected. 

[1867, p. 31. Approved and in force March 4, 1867.] 

Sec. 3286. Conveyance by county board, i. It shall be lawful for 
the board of county commissioners of any county in this State to 
convey to the board of trustees of any incorporated town or to 
the common council of any city, and the successors in office of 
such trustees or councilmen, any cemetery adjoining to or within 
the corporate limits of such town or city, upon the applicatiorL of 
a majority of the citizens of such incorporated town or city, or on 
petition of the president and trustees of such incorporated town 
or the mayor and common council of such city to such county 
board, notice of which application shall have been given by pub- 
lication in a newspaper of general circulation printed and published 
in such city or incorporated town, or by posting up not less than 
three written advertisements of such intended application in pub- 
lic places therein, for not less than twenty days before any regular 
session of such board of county commissioners. 

Resolution Ordering Petition. 

Resolved, that the following petition be presented to the board of com- 
miss-ioners of the county of , State of Indiana : 

To the Board of Coimnissioners of the Coicnty of ; 

The undersigned, A. B., as mayor, and C. D., E. F., etc.. as members of the 

common council of the city of , respectfully pray that your hondrable 

body will convey to said city the cemetery known as " The Rose Hill Cemetery," 



§ 3286] CITIES AND TOWNS. [364 

situate within the corporate limits of said city, and more particularly described 
as follows, to wit: The cemetery bounded by Grant, Orange, Rose and Hill 
streets, of said city. 

A. B., 

Mayor of the City of . 

CD, 

E. F, etc. 

Members of the Common Council of the City of . 

The clerk is hereby directed to make a certified copy of the above petition 
and file the same before said board of county commissioners. 

[The petition need not be presented until the first day of the term, notice of 
such intention having been given.] 

Clerk's Certificate. 

I, X. L, clerk of the city of , State of Indiana, hereby certify that 

the above is a full, true, and complete copy of the petition adopted by the mayor 

and common council of said city on the day of , 18 — , a certified 

copy of which I was, at the timeof its adoption, directed to make and lay be- 
fore the board of commissioners of the county of , State of Indiana. 

In testimony whereof, I hereunto set my hand and seal of said city, this 
day of , 18 — . 

[Corporate seal.] X. L., 

Clerk of the City of . 

Notice. 

To Whom it may Concern: 

Notice is hereby given that the mayor and common council of the city 
of , State of Indiana, will apply by petition to the board of commission- 
ers of the county of , said State, to have Rose Hill Cemetery, within said 

city, more particularly described as follows, to wit : The cemetery bounded by 
Grant, Orange, Rose and Hill streets of said city, conveyed by said board to 
said city, and that the matter will be heard and determined at the next regular 

sitting of said board, beginning on the day of , iS — . 

X. L, 

Clerk of the City of . 

[A copy of this notice, with an affidavit of publication, should be laid before 
the board by the first day of the term.] 

Order-book Entry. 

Whereas, the mayor and common council of the city of , State 

of Indiana, have filed a petition before this board, praying that The Rose Hill 
Cemetery, more particularly described as follows, to wit : The cemetery 
bounded hy Grant, Orange, Rose and Hill streets, within said city, be conveyed 
to said city by this board ; and 

Whereas, it appears that notice of the intention to make such applica- 
tion has been given by publication in the Weekly Argus ^ a paper of general 
circulation, printed and published in said city, for not less than twenty days be- 
fore the first day of this present session ; tlierefore 

It is ordered that a deed be executed by this board, conveying to said 
city all right, title, and inteVest of the county in and to said cemetery as above 
described. 

Deed. 

Whereas, the maj'or and common council of the city of , of the 

county of , and State of Indiana, on the day of , 18 — , filed 

a petition before the board of county commissioners of the county of , 

State of Indiana, praying that the cemetery lying within its limits, commonly 



365] CEMETERIES. [§§ 328/, 3288 

kno\Vn as "Rose Hill Cemetery," more particularly described as follows, to wit : 
The cemetery bounded by Grant, Orange, Rose and Hill streets of said city; 
and 

Whereas, said board on the day of , 18 — , ordered a deed 

to be executed conveying to said city all. the right, title, and interest of said 

county in and to said cemetery, which order was entered in order-book , 

on page , of the records of said board ; therefore 

This indenture witnesseth, That the board of commissioners of the county 

of , State of Indiana, conveys and quit-claims to the city of , 

of said county and State, for and in consideration of the premises above set out, 
the following real estate situate within said county and State, to wit ; The 
Rose Hill Cemetery, more particularly described as follows, to wit : The 
cemetery bounded bv Grant, Orange, Rose and Hill streets of said city. 

In testimony whereof, the said board of commissioners of the county 
aforesaid, by the members thereof have hereunto set their hands and seals, and 

affixed the seal of said county, this dav of , 18 — , 

R. U., [Seal.] 
[County seal.] L. X., [Seal.] 

T. U. [Seal.] 

State of Indiana^ County of , .?5.- 

Personally appeared before me, X. L., a notary public in and for said 
county and State, R. U., L. X., and T. U., members of the board of commission- 
ers of said county, and, for and on behalf of said board, acknowledged the 
execution of the above and foregoing deed. 

In testimony whereof, I have hereunto set my hand and official seal this 
day of , 18 — . 

[Seal.] X. L., 

Notary Public. 
[The above deed should be first entered of record, as part of the board's pro- 
ceedings, in their order-book.] 

Sec. 3287. Control. 2. Upon such conveyance being made of 
any such cemetery to any town or city, it shall be their duty to 
accept and record the same upon their records, and also have the 
same recorded upon the records of deeds by the recorder of the 
county in which such town or city may be situated ; to take pos- 
session of and control, improve and protect and preserve such ceme- 
tery ; and lay out lots, and make all necessary regulations for inter- 
ments therein. 

Record of Acceptance. 

Whereas, this comm.on council on the day of , 18 — , peti- 
tioned the board of commissioners of the county of , State of Indiana, 

prajdng that the Rose Hill Cemetery, bounded by Grant, Orange, Rose and 
Hill streets within this city, be conveyed to this citj' ; and 

Whereas, in pursuance of said prayer, said board by deed did convey said 
cemetery to this city on the day of , 18 — ; therefore 

Resolved, that said deed of conveyance is hereby accepted; and said deed, 
which is as follows, is hereby ordered to be entered of record in the record of this 
council, and to be recorded in the recorder's office of said county, viz.: {Set out 
deed in ftdl.'l 

Sec. 3288. Power to protect. 3. The board of trustees of such 
incorporated town or mayor and city council of such cit}- shall 
have full power to make and enforce all necessary ordinances for 
the control and protection of such cemetery, and for the prosecu- 



§§ 3289, 3290] CITIES AND TOWNS. [366 

tion and punishment of any person for the commission of any 
waste or trespass within or upon such cemetery, or upon any 
grave, monument, tomb, or tomb-stone, inclosure or ornament 
thereof, or any shrubbery or flowers thereon. 

[18S1, p. 17. Approved March 7, iSSi, and in force September 19, 18S1.] 

Sec. 3289. May vacate. i. Where any cemetery within or 
adjoining the corporate Hmits ofanycityor incorporated town in 
this State has been or shall hereafter be conveyed to such city or 
town by the board of commissioners of the county in which such 
city or town is situate; or when any such cemetery exists wherein 
burials have been made by the license or permission of the owner 
or owners of the lands wherever [whereon] such cemetery is located, 
or when any such cemetery exists by the dedication of the lands 
wherever [whereon] situated by the owner or owners thereof for 
burial purposes, the common council of such city or the board of 
trustees of such town may vacate such cemetery as hereinafter 
provided. 

[i89i,p. 298. Approved March 6, 1S91, and in force June 3, 1891.] 

Sec. 3290. Petition and finding. 2. When five resident free- 
holders of such city or town shall, in writing, petition the common 
council of such city or the board of trustees of such town to vacate 
such cemetery, the same shall be entered at length in the proper 
record of proceedings of such common council or board of trustees. 
And if, upon considering such petition, such common council or 
board of trustees shall find that such cemetery has fallen into 
neglect or disuse ; that remains of deceased persons have been, 
from time to time, exhumed and removed therefrom, on account 
of such neglect ; and that the same hinders and obstructs the 
growth of such city or town, or any part thereof, or that the 
same is injurious to the health of the neighborhood in which the 
same is located, — such finding shall be entered at length in said 
record of proceedings, together with an order that such cemeteries 
be vacated. 

Petition. 

To the Common Council of ilie City of .• 

The undersigned resident freeholders of said city pray that your 
honorable body will vacate Rose Hill Cemetery, bounded by Grant, Orange, 
Rose, and Hill streets of said city. 

Journal Entry. 

Whereas, A. B. and four other resident freeholders of this city have 
presented the following petition to this council, to wit: \set it out]\ and 

Whereas, this council finds that said cemetery has fallen into neglect and 
disuse; that remains of deceased persons have been from time to time exhumed 
and removed therefrom on account of such neglect; and that said cemetery 
hinders and obstructs the growth of this city in the parts adjacent thereto; 
therefore 



367] CEMETERIES. [§§3290^ 329 1 

It is ordered that said cemetery be and the same is hereby vacated; and the 
city clerk is ordered to prepare a list of the names of all deceased persons 
remaining interred in said cemetery, and publish the same for three weeks 
successivel}- in the Weekly Argus^ of this county, together with a notice to all 

persons interested, that on and after the day of , 18 — , this council 

will proceed to exhume and remove the remains in said cemetery. 

Sec. 3290^:. Gift or purchase — Expense of removing bodies. 2. 

The common council of such city or board of trustees of such town 
are authorized and empowered to receive by gift or to purchase 
ground within or without such city or town, whereon to re-inter 
bodies removed from such vacated cemetery, and such ground 
shall be held and maintained as a city or town cemetery. Such 
city or town shall assign and convey for burial purposes to each 
owner of a lot or lots in such vacated cemetery a lot or lots in such 
new burial ground equal in number to the lots owmed by him in 
such vacated cemetery, which lot or lots in such new burial ground 
shall be taken and held by such lot-owner in lieu of and as com- 
pensation for all his rights, title and interest in said vacated ceme- 
tery. If the cemetery so vacated shall be a private cemetery, the 
expense of removing and re-interring the bodies buried thereon, 
with their proper monuments or grave-marks, together with the 
cost of purchasing so much of new burial grounds, if the same 
be purchased, as will equal in area the land embraced in such 
vacated cemetery, shall be a lien upon the lands embraced in such 
vacated cemetery in favor of such city or town, which lien may be 
foreclosed according to the same procedure and upon like notice 
as required for the foreclosure of mortgages. 

[18S1, p. 17. Approved March 7, 1881, and in force September 19, 1S81.] 

Sec. 3291. Eemoval and re-interment. 3. Such common coun- 
cil or board of trustees shall, thereupon, prepare, as nearly as may 
be, a complete list of the names of the deceased persons remain- 
ing interred in such cemetery, and shall publish the same for three 
weeks successively in some newspaper of general circulation 
printed and published in the county, together with a notice to all 
persons interested, that on and after the time stated in such notice 
(which shall not be less than thirty days after the last publication 
thereof), such common council or board of trustees will proceed to 
exhume the remains in such cemetery. The remains of such per- 
sons as may be claimed by their relatives or friends shall be de- 
livered to such claimants for removal and re-interment. The 
remains of all persons remaining unclaimed shall be removed and 
properly re-interred in some suitable cemetery or burial-ground in 
the vicinity of such city or town, by and at the expense of such 
city or town; and all monuments, grave-stones, or other dis- 
tinguishing marks shall be removed with such remains, and placed 
in proper position. Such common council or board of trustees 
shall also record in the proper record of their proceedings, the 



§§ 3292, 3292^] IMPROVEMENT CF STREETS. [3^8 

names, as ascertained, of all deceased persons re-interred by them, 
together with a description of the place of re-interment. 

Notice by Publication. 

Notice 13 hereby given that the following is a list of all deceased per- 
sons remaining interred in the Rose Hill Cemetery, bounded by Grant, Orange, 

Rose and Hill streets, of the city of , State of Indiana, viz.: [Gt've them\. 

Bj order of the common council of the city of . 

[Seal.J A. B., 

Clerk of the City of . 



Notice to Interested Persons. 

To A. B., etc.: You are hereby notified that on and after the 

day of — , 18 — , the common council of the city of , State of Indiana, 

will proceed to exhume the remains of all deceased persons interred in the 
Rose Hill Cemetery, bounded by Grant, Orange, Rose and Hill streets, of said 
city, and to remove and re-inter the same in [Describe the flace\. 
By order of the common council. 

[Seal.] A. B., 

Clerk of the City of . 

[This may be served by the city marshal, the same as a stimmons issued by 
the ma^'or.] 

Record. 

Record of the names a::id place of burial of all persons removed by 
the city from the Rose Hill Cemetery. 





Name. 


Place of Burial. 


Date of Removal. 









Sec. 3292. Title not affected. 4. The title to the cemetery 
grounds where the same has been or shall be conveyed by the 
board of commissioners of the county to any city or town, after 
such cem.etery shall have been vacated, shall, in nowise, be dis- 
turbed thereby, but the same shall continue in and be preserved 
to such city or town. 

ARTICLE 5^— IMPROVEMENT OF STREETS. 

Bonds— Interest — Lien. 

Certificates of estimates — Enforcenient 

of liens — Release of errors. 
Collections. 
Xot applicable to large cities. 



[1889, p. 237. Approved and in force March 8, 1S89.] 

Sec. 3292^. Improvement of streets. When the owners of two- 
thirds of the whole line of lots or parts of lots in any city or incor- 
porated town (and measuring only the front line of such lots as 



SEC. 






SKC. 


3292^. 


Improvement of streets. 




3292// 


3292^. 


Resolution — Notice. 




32922. 


3292c. 


Costs, hoAV collected. 






3292^/. 


Allowance to owner of lot. 




32927. 


3292^. 


Estimates— Repairs. 




3292/t 


3292/. 


Final estimate — Report of eng-ineer. 




3292^. 


Notice — Amounts placed on tax 
cate. 


dupli- 





369] IMPROVEMENT OF STREETS. [§ I2(^2a 

belong to such persons resident in such city or town) bordering 
on any street or alley consisting of one whole square between any 
two streets crossing the same, or if the common council of such 
city or board of trustees of such town deem it expedient for any 
reasonable distance less than one whole square or block upon any 
square or alley, shall petition the common council of such city or 
board of trustees of such town to have the sidewalk graded and 
paved, or the whole width of the street graded and paved, or for 
either kind of improvement, or for lighting such streets according 
to the general plan of improvements in said city or incorporated 
town, or for constructing a sewer, the common council of such city 
or the board of trustees of such town may cause the same to be 
done by contract, given to the best bidder, after advertising 
for three weeks in some newspaper of general circulation pub- 
lished within the city or incorporated town, to receive pro- 
posals therefor, and the common council of such city or the 
board of trustees of such town shall have the power to com- 
pel the owner or owners of a lot or part of a lot on any street 
or alley, or upon any part of any street or alley, to repair the 
sidewalk in front of their respective lots or parts of lots, and 
in case the owner or owners of any lot or part of a lot on any 
street or alley, or any part thereof, fail or refuse to repair the side- 
walk in front of their lots, or if the owner be a non-resident of said 
city or town, or can not be found, the common council of such city 
or the board of trustees of such town may cause such repairs to be 
made at the cost and expense of the owner or owners of such lot 
or lots, or if such sidewalk be dangerous, the street commissioner 
or any officer of said city or incorporated town may cause such re- 
pairs to be made immediately, and the city or incorporated town 
shall have a lien on such lot or lots for the reimbursement to her 
of the cost of such improvement, and the common council of such 
city or the board of trustees of such town are hereby invested with 
full powers to pass by-laws and ordinances providing how and in 
what manner the repairs or improvements shall be made, and in 
what manner the cost shall be assessed and collected from such 
owner or owners, and the manner in which the lien of the city or 
incorporated town for the expense incurred by her may be enforced 
against the lot or lots of such owner or owners, and the city or 
incorporated town may bring an action, by its attorney, in any 
court of competent jurisdiction to foreclose such lien as a mortgage 
is foreclosed, and in such action may recover, in addition to the 
amount of such lien and the costs of such proceedings, a reason- 
able attorney fee for the use of its attorney, for enforcing such lien, 
and such property shall be sold without relief from valuation or 
appraisement laws, and upon the sale of such property, if no other 
person bid the amount of such judgment and all costs, the city or 
incorporated town may purchase said property for judgment and 
all costs, and if not redeemed within one year from the time of such 

24 



§ I2g2a\ IMPROVEMENT OF STREETS. [S/O 

sale, the sheriff shall issue to the holder of the certificate of sale a 
deed for such property, and such city or incorporated town, if such 
deed be issued to it, shall become the absolute owner of such 
property : Provided, That any city or incorporated town having a 
population of less than ten thousand may, by a two-thirds vote of 
all the members of the common council of such city or the board of 
trustees of such town, cause plank or gravel walks, of such dimen- 
sions as such council or such board of trustees may determine, to be 
constructed either upon the natural grade of the sidewalk therein, or 
any modification thereof established by such council or such board 
of trustees, and the cost and expense of any such improvement or 
repairs thereto shall be a lien upon the real estate fronting thereon, 
and shall be assessed and collected in the same manner as now 
prescribed by law for collecting assessments for improving streets, 
alleys and sidewalks : Provided, further, That when the State of 
Indiana is the owner of property on or along the street or streets 
proposed to be improved, as hereinbefore provided, the common 
council of such city or the board of trustees of such town shall 
not contract for the execution of said improvements, involving the 
State in any liability, without first obtaining the written consent and 
approval of the auditor and treasurer of state, but such city or in- 
corporated town may make such improvement at its own expense. 
[El. Sup. § 812.] 

ORDER OF XECESSARY STEPS. 

The following are the essential steps and the order in which thej should be 
taken: 

1. Acquisition of title to street bj condemnation, gift or dedication. 

2. Petition of the owners of two-thirds, in number of front feet, of the Avhole 
line of lots or parts of lots bordering on the proposed improvement, describing 
generally the work desired, § 3292^. If ordered by a two-thirds vote of the coun- 
cil, a petition is not necessary, § 3292^. 

3. Resolution ordering the work done, and describing the kind it shall be, 
§ 32921^, and directing advertisement for bids, § 3292(7. 

4. Publication of the passage of the resolution for ten da^■s, § 3292/;. 

5. Advertisement for bids for three weeks, § 3292^. 

6. Letting contract to best bidder, § 3292(7, and execution of contract and 
bond, § 3292(^. 

7. Estimate by engineer, § 3292^? and § 3292/". 

8. Notice of the making and filing of the estimate, § 3292^. 

9. Reference of estimate to committee on streets. 

ID. Notice to property owners by two weeks' publication of reference of 
report to such committee. 

11. Appearance and objection to assessment by the land-owner, if he so 
choose. 

12. Report of committee, § 3292^. 

13. Hearing of aggrieved land-owner, confifmation of report of committee, 
approval of estimate, and assessment of land or lots, § 32920-. 

14. Agreement of land-owners, each assessed in excess of fifty dollars, waiv- 
ing irregularities, § 3292/;^. 

115. ' Order placing assessment on tax duplicate. 

16. Ordinance for bonds, § 3292//. 

17. Issuance of bonds, 3292^. 



37i] 



IMPROVEMENT OF STREETS. 



[§ 3292^ 



iS. In case of a failure to sign the agreement, or where the amount is less 
than fifty dollars, if the assessment is not paid in twenty days, the contractor 
files an afiidavit for a precept, which the clerk lays before the council, who 
order a precept ; one issued and signed by the mayor, delivered to the treas- 
urer, who serves notice of it upon the land-owner by reading it to him, or gives 
notice thereof by publication ; if not paid within twenty days thereafter, he ad- 
vertises the lot for sale, sells it, and issues a certificate ; if not redeemed during 
the succeeding year, he issues a deed for such certificate. After notice of the 
issuance of the precept, the land owner may appeal, § 3292/. 



1. See § ^161, Jio^es, and § ^162, no^es. Improvement ordered without peti- 
tion, § 3192^?. 

2. This and the following sections do not repeal the general provisions of 
the law for the improvement of streets and sidewalks in cities and towns; it is 
in addition thereto, and proceedings may be had under this law or those laws, 
at the option of the council or board of trustees 

3. As to whether or not a particular improvement is necessary must, of 
necessity, be left to the discretion of the common council or board of town 
trustees where the improvement is made. This may be determined by the council 
or board without notice to the property owners who are to be aff"ected by such 
improvement. Assessments to pay for the improvement are made upon the 
assumption that the property aff'ected is benefited in a sum equal to the cost. But 
whether or not such improvement benefits the property in a sum equal to its 
cost is essentially a judicial question, upon which the property owner is entitled 
to notice and a hearing, 125 Ind. 455. 



Petition. 



-, Ind., 



To the Common Council of the City of , Ijtdii 

Gentlemen: We. the undersigned, OAvners of real estate represented by 

the feet front abutting upon , from to -, hereby petition your 

honorable body for the ; all as provided for in an act of the general 



assembly of 'Indiana, approved March 8, 1889. 




Name of Owner, 


No. of 
Feet. 


No. of 
Lot. 


Name of Addition or Subdivision. 











































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§ 3292a] 



IMPROVEMENT OF STREETS. 



[372 



Bid. 



-, Ind., , iS- 



To the Common Council of the City of- 



-, Ind: 



Gentlemen: The undersigned propose to improve , from 

to , by , including any and all work and material that maybe neces- 
sary to connect the work done with the adjoining work in a proper and work- 
manlike manner, and according to the plans and specifications and profile on 
file in the office of the city civil engineer of said city, and according to the 
terms of special ordinance No. , iS — , and according to the laws and regu- 
lations of the city, and under the direction and to the entire satisfaction of said 
city civil engineer, at the following rates, to wit: 





Price written in words here. 


Fig-ures here. 


Bowldering, per lineal foot . . 




DDLS. 


GTS. 


Curbing with Stone,per lineal ft. 








Paving with Brick, per lineal ft. 








Graveling, per lineal foot . . . 








Double Walk Stone 








Single " 








Bowldered^Vings, per square vd. 


















Contractor. 

























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Double Walk-stone . . . 

Single 

Bowlderinp-.ner sa uare vd. 




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373] RESOLUTION NOTICE. [§ 3292^ 

Sec, 3292^. Hesolution — Notice. 2. Whenever cities or incor- 
porated towns subject to the provisions of this act shall deem it 
necessary to construct any sewer, or make any of the alley or 
street improvements in this act mentioned, the council or board of 
trustees shall declare by resolution the necessity therefor, and shall 
state the kind, size, location, and designate the terminal points 
thereof, and notice for ten days of the passage of such resolution 
shall be given for two weeks in some newspaper of general circula- 
tion published in such city or incorporated town, if any there be, 
and if there be not such paper, then in some such paper printed 
and published in the county in which such city or incorporated 
town is located. Said notices shall state the time and place, when 
and where the property owners along the line of said proposed im- 
provement can make objections to the necessity for the construc- 
tion thereof. [El. Sup. § 813.] 

1. This section is co}istitutiojiaI, 125 Ind. 407, 455. The council or board of 
trustees may, under this section, declare in the same resolution the necessity for 
a proposed street improvement, and order the same to be made. It is not 
necessary to first pass a resolution declaring the necessity of such improve- 
ment, and then afford those interested an opportunity to be heard as to the 
necessity for the construction of said work before a valid order can be made for 
such improvements. It is a substantial compliance with the requirements of 
the statute to embrace both matters in one resolution, and the doing so will not 
render the proceedings void, 125 Ind. 457. 

2. So much of the statutory proceedings as confer jurisdiction are strictly 
construed^ but failure to comply with any provision ^of the statute not jurisdic- 
tional is a mere irregularity not open to a collateral attack, 125 Ind. 457. 

3. An order entered for an improvement is not in the nature of a judgment; 
it is a mere preliminary step looking to a public improvement, to be made, or 
not, as the common council in its discretion may determine, from which it may 
recede at any time before the contract for the improvement is concluded, 125 
Ind. 457. 

4. No action can be taken by the council or board of trustees after resolv- 
ing to make the improvement, until notice is given and an opportunity afforded 
the property owners to present for the consideration of the council or board 
such objections as they may make to the necessity for the construction of the 
work. This object is accomplished by requiring objections to be filed with the 
clerk, to be by him laid before the council or board of trustees, 124 Ind. 292. 

5. The notice must he ^ublisJied for two successive weeks, ten days prior to 
the day fixed for making objections ; that is, the first publication must have 
been made twenty-four days before the time therein fixed, 124 Ind. 292. 



Declaratory Resolution. 

Resolved, by the common council of the city of , Ind., that it is 

deemed necessary to improve •, from to , b}^ , in accord- 
ance with profile and specifications on file in the office of the city civil engineer. 
The total cost of said improvement shall be assessed per lineal front foot upon 

the real estate abutting on said (except the proportion thereof occupied 

by street and alley crossings, which shall be assessed against the city of ); 

said assessments, if deferred, to be paid in ten annual installments. A bond or 
bonds shall be issued in anticipation of the collection of said ;xssessments, un- 
less the property owners pay said assessments before said bond or bonds are 
issued, all as provided for in an act of the general assembly of Indiana, ap- 
proved March 3, 1889. 



3292^J 



IMPROVEMENT OF STREETS. 



[374 



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[The above resolution and the following notice can be dispensed with :f de- 
sired; and a resolution introduced ordering the work done at once, 125 Ind.455, 
124 Ind. 292.] 



Notice of Intention to Improve 



Street. 



Notice is hereby given that at a regular meeting of the common council 

of the city of , State of Indiana, held at the council chamber of said city 

on the day of , 18 — , said council adopted a resolution declaring that 

it was necessary to improve street from to by [Sta/e kind 

of improveme7it in general terms]. Notice is also given that objections to said 
proposed improvement may be made at the council chamber of said city at 10 
a.m. on the day of ,18 — , before the committee of said coun- 
cil [or, by reducing the same to writing and filing the same with clerk of said 

city bv 7 p. m. on the day of , 18 — .] 

X.L., 

Clerk of the City of , 

[It is not necessary to give the above notice, under the decision of the 
supreme court (125 Ind.455; 124 Ind. 292), audit may be entirely dispensed with. 
If resorted to it should be given by publication for two weeks in a newspaper of 
the city or town, the last publication to be ten days before the day set for hear- 
ing or for the last day for filing objections with the city clerk.] 



(Form A.) 

Special Ordinance for Alley, 
No. , 18—. 



ALLEY 



AN ORDINANCE TO PROVIDE FOR GRADING AND THE 

OF STREET, FROM TO , AND THE COSTS THEREOF. 



Sec. I. Be it ordained hy the Common Council of the City of , Ind., 

That the alley of street, from to , be graded 

according to stakes to be set by the city civil engineer, on the following grade, to 

Avit: Beginning at station , and graveled, full width of ( — ) feet, to 

a depth of (— ) inches, with the best quality of raked, river or 

creek gravel ■. 

All work to be done to the entire satisfaction of the city civil engineer. 

Sec. 2. The cost of said improvement of said (except the proportion 

thereof occupied by street and alley crossings) shall be assessed per Imeal front 
foot against the real estate abutting thereon ; said assessment, if deferred, shall 
be paid in ten annual installments, to each of which shall be added interest at 
six per cent, per annum, payable semi-annually from the date of final estimate 



375] 



RESOLUTION NOTICE. 



[§ 3292-^ 



hereon, and collected as provided by law. A bond or bonds shall be issued in 
anticipation of the collection of said deferred assessments unless the property 
owners pay their said assessments before said bond or bonds are issued, all 
as provided for in the act of the general assembly of Indiana, approved March 
8, 18S9. 

Sec. 3. The city civil engineer is hereby directed to set the proper grade 
stakes, and also to advertise, by publication one day each week for three succes- 
sive weeks, in the , that sealed proposals, for the execution of said work, 

will be received by the ,on the day named in said advertisement. 

Sec. 4. This ordinance shall take effect and be in force from and after its 
passage. 

Passed by the common council this day of , 18 — , 



Attest: 



Mavor. 



City Clerk. 






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(Form B.) 

Special Ordinance for Gutter and Sidewalk. 



No. 



18- 



AN ORDINANCE TO PROVIDE FOR GRADING, BOWLDERING AND CURBING THE 
GUTTER — OF STREET, AND PAVING WITH BRICK THE SIDE- 
WALK — THEREOF, FROM STREET TO STREET, AND THE COSTS 

thereof: 

Sec, I, Be it ordained by the Com77ton Council of the City of , Ind., 

That the gutter — and sidewalk — of street, from 

street to , be graded according to stakes to be set by the city civil engineer 

on the original grade of said street, and the gutter — bowldered to a width of 

feet, with the best quality of bowlders, placed upon twelve inches of the 

best quality of sand, bowlders to range in size from four to ten inches in longest 
diameter, to be rammed three times and left uncovered until approved by the 
engineer, and finished with a two-inch coat of sand 

And the outer edge — of sidewalk — to be curbed with the best qua! it v of 

stratified limestone curbing, not less than four feet in length, inches 

wide, and bush-hammer dressed and squared to a thickness of four inches, and 
one-half of their whole depth at each end, and one-half whole depth of the stone 
on the side next the gutter, and three inches on the opposite side next the top 
edge ; the surface to be dressed in neat manner; curb to be rounded to a radius 
of four feet at all street and alley corners. To be set closely adjoining each 
other, with good fitting joint, upon a bed of sand, well packed six inches deep 
below the bottom of the stone used. 

And the sidewalk — graded to a width of ( — ) feet, and feet 



§ 3292<^] IMPROVEMENT OF STREETS. [3/6 

of the inner portion thereof paved with best quality of smooth, hard-burned 
paving brick, placed upon eight inches of sand, curb to be forined at sides and 
ends of said pavement by placing brick upon longest edge, brick to be thoroughly 
settled with a paver's rammer and plank, and left uncovered until approved by 
the engineer, and finished with a half-inch coat of screened sand. 

Double walk-stone, with the necessary bowldering, to be put in on all street 
and alley crossings. Walk-stone to be not less than four feet m length, fifteen 
inches wide and six inches thick. The upper surface of the stone to be evenly 
dressed, the ends squared and hammer-dressed, so as to form joints not exceed- 
ing one-eighth inch m width, the whole depth of stone and the sides to be so 
dressed as to permit the bowlder or blocks to be set closely adjoining the upper 
surface. And the lawns to be properly dressed up with fine earth, and left per- 
fectly smooth. 

All work to be done to the entire satisfaction of the city civil engineer. 

Sec. 2, The cost of said improvement of said (except the proportion 

thereof occupied by street and alley crossings), shall be assessed per lineal front 
foot against the real estate abutting thereon; said assessment, if deferred, shall 
be paid in ten annual installments, to each of which shall be added interest at 
six per cent, per annum, payable semi-annually from the date of final estimate 
hereon; and collected as provided by law. A bond or bonds shall be issued in 
anticipation of the collection of said deferred assessments, unless the property 
owners pay their said assessments before said bond or bonds are issued, all as 
provided for in the act of the general assembly of Indiana, approved March 
8, 1889. 

Sec. 3. The city civil engineer is hereby directed to set the proper grade 
stakes, and also to advertise, by publication one day each week for three succes- 
sive weeks, in the , that sealed proposals, for the execution of said work, 

will be received by the , on the day named in said advertisement. 

Sec. 4. This ordinance shall take effect and be in force from and after its 
passage. 

Passed by the common council this day of , iS — . 

Attest: iu^or. 

City Clerk. 



(Form C.) 

Special Ordinance for Street and Sidewalk. 
No. ,18—. 



AN ORDINANCE TO PROVIDE FOR GRADING AND GRAVELING STREET 

AND SIDEWALKS, FROM TO , AND FOR THE COSTS THEREOF. 

Sec. I. Be it ordainedhy the Common Council of the Cityiof ^ Indiana^ 

That street and sidewalks be graded according to stakes set by the 

city civil engineer, on the following grade, to wit: Beginning at station , 

and the roadway graveled to a width of ( — ) feet, and to a depth of fifteen 

(15) inches in the center, sloping to inches at the sides, with the best 

quality of raked, river or creek gravel; and the sidev/alks graded to a 

width of ( — ) feet, and ( — ) feet of the inner portion thereof grav- 
eled to a depth of ( — ) inches, with the best quality of sidewalk gravel. And 

the lawns to be properly dressed up with fine earth and left perfectly smooth. 

All work to be done to the entire satisfaction of the city civil engineer. 

Sec. 2. The cost of said improvement of said (except the proportion 

thereof occupied by street and alley crossings), shall be assessed per lineal front 
foot against the real estate abutting thereon; said assessment, if deferred, shall 
be paid in ten annual installments, to each of which shall be added interest at 
six per cent, per annum, payable semi-annually from the date of final estimate 
hereon, and collected as provided by law. A bond or bonds shall be issued in 



377] ' RESOLUTION — NOTICE. [§ 3292^^ 

anticipation of the collection of said deferred assessments, unless the property 
owners pay their said assessments before said bond or bonds are issued, all as 
provided for in the act of the general assembly of Indiana, approved March 8, 
18S9. 

Sec. 3. The city civil engineer is hereby directed to set the proper grade 
stakes, and also to advertise, by publication one day each week for three suc- 
cessive weeks, in the , that sealed proposals, for the execution of said work, 

will be received by the on the day named in said advertisement. 

Sec. 4. This ordinance shall take effect and be in force from and after its 
passage. 

Passed by the common council this day of , 18 — . 



Attest: Mayor. 

City Clerk. 

(Form D.; 

Special Ordinance for use of Asphalt. 

No. , iS— . 



AN ORDINANCE TO PROVIDE FOR GRADING, PAVING WITH STANDARD TRINI- 
DAD ASPHALT SHEET PAVEMENT THE ROADWAY OF , WIDENING THE 

SIDEWALKS THEREOF, RE-SETTING CURB WHERE NECESSARY, AND CURB- 
ING AVHERE NOT ALREADY PROPERLY DONE, FROM THE LINE OF 

TO THE LINE OF , AND THE COST THEREOF. 

Sec I. Be it ordained by the Common Council of the City of , That 

the roadway of- , to a width of ( — ) feet, from the line of 

to the line of , be graded accordmgto the stakes set by the 

city civil engineer on the original grade of said , and according to the 

profile made for said improvement, on file in the office of the city civil engineer 
of said city. 

EXCAVATION AND PREPARATION. 

That the roadway be graded to a smooth and true surface to a depth of eight 
and one-half (8^) inches below the surface of the pavement when completed, 
as indicated by the profile and stakes set by the city civil engineer, and that 
soft or spongy places, not affording a firm foundation, and newly made excava- 
tions for trenches or other purposes, be dug out and refilled with good earth, 
well rammed, and the road-bed thoroughly rolled with a steam road-roller, 
weighing not less than ten (10) tons, until in the opinion of said engineer it is 
sufficiently packed. 

CONCRETE FOUNDATION. 

Upon the road-bed thus prepared, a sub-foundation of hydraulic cement con- 
crete shall be laid to a depth of six (6) inches, prepared and applied as follows, 
to wit: 

The sand to be used in the mortar shall be clean, sharp sand, free from loam, 
dirt or other foreign substance. 

The cement used shall be hydraulic cement, equal in all respects to the best 
quality of Louisville cement; shall be newly made, finely ground and capable 
of withstanding a tensile strain of sixty (60) pounds per square inch of section, 
when mixed pure and made into test bars and exposed thirty (30) minutes in 
air and twenty -four (24) hours in water. 

No cement will be allowed to be used that is not branded with the name of 
the maker. Samples for testing shall be furnished by the contractor, in such 
manner and at such times as maj^ be required by the engineer. The cement 
shall be kept dry and under cover until used, and any cement exposed to the 
weather after testing shall not be used. 

Cement maybe re-inspected at any time when the engineer may so direct, 
and if not found to be of proper quality it shall be rejected, and cement so 
rejected shall be at once removed from the site of work. 



§ 3292^^] IMPROVEMENT OF STREETS. [3/8 

Mortar to be made of one part, by measurement, of cement, as above de- 
scribed, and two parts clean sharp sand. The sand and cement to be thoroughlj 
mixed dry in proper boxes, afterwards sufficient water only added to produce a 
paste of proper consistency, and the whole thoroughly worked with hoes. The 
mortar always to be mixed fresh before being applied to the broken stone ; no 
mortar to be used in concrete after it has obtained a set. 

The concrete shall be make of broken limestone or broken bowlders, and 
hydraulic cement mortar ; the stone to be broken so as to pass through a two 
and one-half (2^4) inch ring in its largest diameter. The stone shall be free 
from all dust or dirt, and thoroughly drenched, and, then mixed with mortar, 
the general proportion being one part cement to two parts sand, and five 
parts broken stone. It shall be laid quickly and then rammed until the mortar 
flushes to the surface. The upper surface will be made parallel with the pre- 
scribed surface of the pavement to be laid. 

No walking or driving over the uncovered concrete foundation shall be 
permitted, and it shall be allowed to set for six days, or such time as the said 
engineer may direct, before any further work shall progress on the same. 

WEARING SURFACE. 

Upon this concrete base will be laid the wearing surface or pavement proper, 
the matrix or binding material of which is a cement, prepared with the best 
quality of refined asphaltum, obtained from the island of Trinidad, and heavy 
petroleum residuum, unmixed with any of the products of coal tar. 

The heavy petroleum oil — the residuum obtained by distillation of petroleum 
' — will be free from water, light oils and other objectionable impurities, and of 
specific gravitv of from 18° to 23° Beaume, and will bear a fire test of 250° 
Fahrenheit. 

The Trinidad asphaltum will be carefully refined, and brought to a uniform 
standard of purity and gravity. 

The refined asphalt and petrolevim residuum will be mixed in the following 
ratio by weight: 

Refined Asphalt 100 parts. 

Heavy Petroleum Oil 13 to 20 " 

But this ratio may be varied according to circumstances, as may be necessary 
to secure the best practical result. 

The pavement mixture, or wearing surface, will be composed of 

Asphaltic cement from 12 to 16 per cent 

Clean, selected sand " 73 to 67 " 

Pulverized carbonate of lime " 15 to 17 " 

100 100 

In order to make the pavement uniform and to secure the best results, the 
proportion of asphaltic cement may be varied according to the quality and 
and character of the sand. 

The proportion of the carbonate of lime may be reduced, or it may be omit- 
ted entirely upon the approval of said engineer, when suitable sand can be 
obtained. 

The sand and asphaltic cement are to be heated separately to about 300° 
Fahrenheit. The y)ulverized carbonate of lime, while cold, will be mixed with 
the hot sand in the required proportion, and will then be mixed with the 
asphaltic cement at the required temperature, and in the proper proportion, in 
an apparatus suited to eff'ect a perfect mixture 

The pavement mixture thus prepared will be laid on the concrete foundation 
in two coats. The first, called the cushion coat, will contain two to four per 
centum more asphaltic cement than is given above; it will be laid to such 
depth as will give a thickness of half an inch after being consolidated by a 
roller The second, called the surface coat, prepared as above specified, will 
be laid on the cushion coat; it will be brought to the ground in carts at a tem- 
perature of about 250° Fahrenheit ; it will then be carefully spread by means 
of hot iron rakes, in such a manner as to give a uniform and regular grade, 
and to such depth that after having received its ultimate compression it will 



379] RESOLUTION NOTICE. [§ 3292^^ 

have a thickness of two (2) inches. The surface -will then be compressed by a 
hand roller ; after which, a small amount of hydraulic cement Avill be swept 
over it, and it will then be thoroughly compressed by a steam roller of the 
above Aveight, the rolling being continued as long as it makes an impression on 
the surface. 

Xo teaming shall be permitted upon the pavement vmtil the is open 

for travel by order oY the city civil engineer. 

MARGINAL FINISH. * 

There shall be set at the edges of the asphalt pavement, on line with the 
curb, where it crosses any street or alley, a line of retaining stone, of Medina 
sand-stone, or other stone equally as good. These stones shall be four (4) 
inches thick and not less than eighteen (18) inches deep, and so set that their 
tops shall conform to the surface of the pavement. 

SIDEWALKS. 

The sidewalks shall be widened so as to allow a ( — ) foot roadway 

the center line of which roadway shall be on the center line of said , 

and the lawns neatly dressed up with fine earth to the height and line of the 
curb. 

CURBING. 

The outer edges of the sidewalks, where not already properly done, shall be 
curbed with the best quality of stratified lime-stone, not less than four (4) feet 
in length, twenty-four (24) inches deep, and four (4) inches thick. The top, 
ends and face of said curbing to be neatly dressed, so as to form good, even and 
close joints at the ends, and present a smooth face at least twelve (12) inches 
from the top of same. The return curb at corners of all streets and alleys to be 
cut to a radius of four (4) feet. All curbs to be set upon six (6) inches of sand. 
Where directed by the engineer, the old curb shall be taken up and re-set to. 
proper line and grade. 

At the place where catch-basins or sewer-receivers are located, the center 
curbing shall be of approved granite, and shall have an opening cut into it of 
such form an dimensions as said engineer may direct. 

All work herein provided for shall be connected up in a good, smooth, and 
workmanlike manner with all intersecting streets, avenues or alleys, without 
any additional charge. ' 

All work herein provided for shall be done to the entire satisfaction of the 
city civil engineer. 

GUARANTEE. 

The contractor will be required to furnish a bond to the city of , 

with at least two sufficient sureties, who shall each justify, in full penalty of the 
bond. Said bond to be approved by the common council and board of alder- 
men, and the amount of said bond to be equal to thirty-three and one-third 
(33K) per cent, of the contract. A condition of said bond shall be, that the 
contractor will, at his own cost and expense, keep and maintain said improve- 
ment in good condition for five years from completion of same, and that said 
contractor will repair said pavement at any time within said fi^ e years, when- 
ever directed by said engineer, within ten days after a written notice to that 
effect is served on said contractor, and in the event the contractor refuses or 
fails to comply with said order the sureties of said bond will be notified and 
directed to proceed with the said repairs, as directed by the engineer. 

Where the pavement is intentionally cut for pipe-laying or other purposes, 
or accidentally injured, the contractor in such case must enter into a special 
contract to make repairs whenever directed to do so by said engineer, at a 
stated rate named in the bid for paving. 

ASSESSMENTS. 

Sec. 2. The cost of grading, paving, re-setting curb and curbing of said 

part of said , as aforesaid (except the proportion thereof occupied by the 

street and alley crossings), shall be assessed per lineal front foot against the 



3292^] 



IMPROVEMENT OF STREETS. 



[380 



real estate abutting and bordering thereon between the limits aforesaid, under 
and in accordance with the provisions of an act of the general assembly of the 
State of Indiana, approved March 8, 18S9, entitled "An act concerning pow- 
ers and duties of cities and incorporated towns and their common councils and 
boards of trustees, and providing the mode and manner of making street and 
alley improvements and building sewers, and providing for the mode and man- 
ner of enforcing ihe payment of the costs of street and alley improvements and 
builfling sewers, and permitting cities or incorporated towns to issue street and 
sewer improvement bonds, and repealing all conflicting laws, and declaring an 
emergency." 

The cost of grading, paving, re-setting of curb and curbing of that propor- 
tion of said as is occupied by the crossings of streets and alleys and pub- 
lic grounds of the city bordering thereon, shall be assessed against and collect- 
ed from the city of , according to law: Provided^ That in no event shall 

the city of be liable for any part of the cost of said improvement other 

than for such proportion for such street as is occupied by such street and alley 
crossings and public grounds of the city bordering thereon. 

All said assessments, if deferred, shall be paid in ten annual installments, 
to each of which shall be added interest at six per cent, per annum, payable 
semi-annually, from the date of final estimate thereon, and collected as provid- 
ed for by law. A bond or bonds shall be issued to the contractor in payment 
for said work, unless the property owners pay their said assessments before 
said bond or bonds are issued, all as provided for in said act of the general 
assembly of the State of Indiana, approved March 8, 1889. 

Sec. 3. The city civil engineer is hereby directed to set the proper grade 
stakes, and also to advertise, by publication one day each week for three suc- 
cessive weeks, in the , that sealed proposals, for the execution of said 

work, will be received by the on the day named in said advertisement. 

Sec. 4. This ordinance shall take effect and be in force from and after its 
passage. 

Passed by the common council this day of 18 — . 



Attest: 



Mayor. 



City Clerk. 



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Sec, 3292^. Costs, how collected. 3. In all contracts specified 
in the preceding section the cost of any street or alley improve- 
ment shall be estimated according to the whole length of the street 
or alley, or the part thereof to be improved per running foot, and 
the costs of any such sewer shall be apportioned among the lands, 
lots and parts of lots, benefited thereby, and according to such 
benefits without regard to the assessment for taxation of such 



381] COLLECTING COSTS. [§3292^ 

property, and the city or incorporated town shall be liable to the 
contractor for the contract price for said improvement, and the 
owners of lots or parts of lots bordering on such street or alley, 
or the part thereof to be improved, or of the lots or parts of lots 
benefited by the construction of such sewer shall be liable to 
the city for their proportion of the costs in the ratio of the 
front line of their lots owned by them to the whole improved 
line for street and alley improvements, and for the construction 
of such sewer for the benefit of such lots or parts of lots thereby, 
and the city or incorporated town shall have a lien upon such 
lots or parts of lots, respectively, from the time such improve- 
ment is ordered, for such costs of improvement, collectible as here- 
inafter provided, and in all cases where such improvement shall 
have been made, or may hereafter be made on any street or alley 
running along or through any unplatted lands lying within the cor- 
porate limits of such city or incorporated town, the cost of such 
improvement shall be estimated according to the whole length of 
the street or alley, or the part thereof to be improved per run- 
ning foot, and the owners of such unplatted lands bordering on 
such street or alley, or the part thereof to be improved, shall be 
liable to the contractor for their proportion of the cost, in the ratio 
of the front lines of such unplatted lands owned by them to the 
whole improved line ; and in making the assessment against such 
owners for the improvement of such lots or parts of lots and un- 
platted lands shall be assessed upon the ground fronting or imme- 
diately abutting on such improvement back to the distance of one 
hundred and fifty feet from such front line, and the city or incorpo- 
rated town and the contractor shall have a lien theron for the value 
of such improvement : Provided, however, That where such land is 
sub-divided or platted the land lying immediately upon and adjacent 
to the line of the improvement and extending back fifty feet shall 
be primarily liable to and for the whole cost of the improvement 
and, should that prove insufficient to pay such costs, then the sec- 
ond parcel and other parcels in their order to the rear parcel of said 
one hundred and fifty feet shall be liable in their order. Such as- 
sessments, with the interest accruing thereon, shall be a lien upon 
the property so assessed and shall remain a lien until fully paid and 
shall have precedence over all other liens, excepting taxes, and 
shall not be divested by any judicial sale, and if such city or in- 
corporated town shall fail, neglect or refuse to promptly enforce 
and collect such assessment when due, the owner or holder of any 
of the bonds or certificates hereinafter mentioned may foreclose 
such lien or liens as a mortgage is foreclosed in any court of com- 
petent jurisdiction, and shall recover in addition to the amount of 
said bonds and interest and all costs, a reasonable attorney's fee. 
The amount realized by the sale of any of such property, or the 
payment of such assessment after the payment of the costs of 
such proceeding, shall, to the extent of such assessment, with 



§ 3292^] IMPROVEMENT OF STREETS. [382 

interest thereon, be applied pro rata to the payment of the then 
outstanding bonds or certificates herein mentioned, without refer- 
ence to the time of the maturity of the bonds or certificates. Any 
mistake in the description of the property or in the name of the 
owner shall not vitiate the lien of such assessment. Such city or 
town shall be liable and pay for all that part of such street or alley 
improvement as shall be occupied by the street and alley crossings, 
and may order that any part of the total cost of any of the im- 
provements in this act mentioned shall be paid out of the general 
fund. [El. Sup. § 815.] 

See § 3292^?, note^ on liens. 



[1891, p. 323. Approved and in force March 6, 1S91.] 

Sec. 3292^. Allowance to owner of lot. 4. Whenever the owner 
of any lot or part of a lot, before the letting of such contract, shall 
have made any improvement in front of his lot or part of a lot, in 
accordance with the general plan for the improvement of such 
street or alley, and under the direction of the city or town 
engineer, he shall be entitled to a reasonable allowance therefor, 
upon his proportion of the cost of such improvement, which 
reasonable allowance shall be determined by the said engineer: 
Provided^ That the common council of such city, or board of trus- 
tees of such incorporated town, may require all contractors for 
street and sewer improvements to give bonds, with good and suf- 
ficient freehold surety, for the faithful performance of the work, 
and that all contracts made by any city or incorporated town, or 
by any officer under the authority thereof, for public improve- 
ments or otherwise, in the profits whereof any officer shall be in- 
terested, directly or indirectly, shall be void : And provided, further, 
That after receiving bids for the improvement of any street or alley, 
or the construction of any sewer, as aforesaid, and in case all such 
bids are rejected as unsatisfactory by reason of the bids being for 
too great a price, or the bidder failing to give a satisfactory bond, 
or for any other cause deemed sufficient by such common council 
or board of trustees, then, and in such case, the common council 
of any city, or the board of trustees of any incorporated town, 
may order the work to be done by the street commissioner of such 
city or the marshal of such town ; but in such case the total cost 
of the work, to be assessed against the property owners, shall not 
be in excess of the lowest responsible bid for said work, which cost 
shall be assessed and collected, and bonds may be issued therefor, 
as provided in case of the letting of the work by contract, or the 
council or board of trustees may, in such case, re-advertise for bids 
for said work. 



383] ESTIMATES AND REPAIRS, [§§ 3292^, 3292/ 

[18S9, p. 237. Approved and in force March S, 1889.] 

Sec. 3292^. Estimates — Repairs. 5. When any such contract 
shall be made, or shall have been heretofore made, and shall have 
been in progress of fulfillment, the common council of such city 
or the board of trustees of such town shall have power to cause 
estimates to be made from time to time of the amount of work 
done by the contractor, and to cause the same to be paid out of 
the treasury, deducting a reasonable amount or percentage to 
secure the completion of the contract, until the whole shall be 
fiinshed, and to prescribe the time in which the whole shall be 
completed, and such estimates shall be a lien upon the several 
parcels of ground upon which they are assessed to the same ex- 
tent that taxes are a lien, and shall have the same preferences over 
other demands, and such liens shall be in favor of the city or in- 
corporated town, and the owner of the certificate or bonds herein- 
after mentioned to secure to the city or incorporated town and 
such owners, the reimbursement for such cost of improvement 
hereinafter provided for. The common council of such city or the 
board of trustees of such town, with the concurrence of two- 
thirds of the members thereof, may order or cause any or all of 
the improvements mentioned in the first section of this act, and 
repairs of any kinds of streets and alleys to be made in like man- 
ner, without such petition, and either charge and cause any or all 
of the expenses thereof to be assessed and collected, as herein- 
after provided, when petition is made, or if it is deemed just and 
right by the common council of such city or the board of trustees 
of such town to cause such expenses, or any part thereof, to be 
paid out of the general revenue of the city or incorporated town. 
[El. Sup. § 816.] 

There is a seeming conflict between this section and ^'^gic. This section 
declares that the " estimates shall be a lien upon the several parcels of ground 
upon which they are assessed to the same extent that taxes are a lien." This 
quotation is taken from § 3164, under which it was held that there was no lien 
on the lot abutting upon the improvement "until the estimate had been made," 
39 Ind. 119, 38 Ind 289. But by § 3292c it is provided that the city or town 
" shall have a lien upon such lots or parts of lots, respectively, from the time 
such improvement is ordered, for such costs of improvement." Under § 3164 
the mere ordering of the improvement created no lien, 39 Ind. 119. Standing 
alone, § 3292^ creates no lien on the land until the assessment is made ; but 
taken in connection with § 3292c, this estimate becomes a lien when the work 
is ordered, although the amount thereof can not be ascertained until after the 
estimate is brought in. 

Sec. 3292/ Final estimate — Report of engineer. 6. When any 
such improvement has been made and completed, according to 
the terms of the contract therefor made, the common council of 
such city or the board of trustees of such town shall cause a final 
estimate of the total cost thereof to be made by the city or town 
engineer, and the com.mon council of such city or the board of 
trustees of such town shall require said city or town engineer to 



§ 3292/] IMPROVEMENT OF STREETS. [384 

report to the common council of such city, or the board of trustees 
of such town the following facts touching said improvement: 

First. The total cost of said improvement. 

Second. The average cost per running front foot of the whole 
length of that part of the street or alley so improved. 

Third. The name of each property owner on that part of the 
street or alley so improved. 

FoiiriJi. The number of front feet owned by the respective 
property owners on that part of said street so improved. 

Fifth. The amount of such cost for improvement due upon 
each lot or parcel of ground bordering on said street or alley, which 
amount shall be ascertained and fi^ed by multiplying the average 
cost price per running foot by the number of running front feet of 
the several lots or parcels of ground respectively. 

Sixth, The full description, together with the owner's name, of 
each lot or parcel of ground bordering on said part of said street 
so improved. 

Seventh. In the case of the construction of a sewer, a descrip- 
tion of each lot or ^parcel of lot benefited thereby, together with 
the owner's name and the fair proportion of the cost of such sewer, 
according to the benefits conferred thereby that should be assessed 
against such lot or part of a lot. [El. Sup. § 817.] 

[The following form of assessment may be used when a partial assessment is 
made, by leaving out the total cost.] 



385] 



REPAIRS AND ESTIMATES. 



[§ 3292/ 



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Resolution of Acceptance of first Assessments. 



Resolved, by the common council of the city of 

panying first estimate in behalf of be and the same 



— , that the accom- 
is hereby adopted 



as the estimate of the common council of said city, and that the property own' 
ers are hereby required to pay the sums set opposite their respective names. 



[1891, p- 323. Approved and in force March 6, 1891.J 

Sec. 3292^. Notice — Assessments placed on the duplicate. 7. 
Upon the filing of the report provided for in the last preceding 
section, the common council of such city, or the board of trustees 
of such town, shall give two weeks' notice in a newspaper printed 
and published in such city or incorporated town, if any there be, 
and if there be no such newspaper, then in a newspaper printed 
and published in the county in which such city or incorporated 
town is located, of the time and place when and where a hearing 
can be had upon such report before a committee to be appointed to 
consider such reports, and such committee shall make report to 
the common council of such city, or the board of trustees of such 
town," recommending the adoption or alteration of such report, 
and the common council of such city, or the board of trustees of 
such town, may adopt, alter or amend such report and the assess- 
ments therein. Any person feeling aggrieved by such report shall 
have the right to appear before such committee and the common 
council of such city, or the board of trustees of such town, and 
make objection thereto, and shall be accorded a hearing thereon. 
And the common council of such city, or the board of trustees of 
such town, shall assess against the several lots or parcels of ground 
the several amounts which should be assessed for and on account 
of such improvement; which said amounts shall bear interest at 
the rate of six per cent, per annum from the time of the finding 
of the completion of said improvement by the common council or 
board of trustees, as mentioned in section six of this act. Should 
anyone of such assessments exceed the sum of fifty dollars, then 
if the owner of the lot or parcel against which said assessment is 



^Syl NOTICE AND ASSESSMENTS. [§ 3292^ 

made, may, if he within two weeks after the making of such 
assessments, shall promise and agree in writing, to be filed with 
the clerk of such city or town and to be spread of record by him 
in consideration of the right to pay his or their assessment, or 
respective assessments in installments, that they will not make any 
objections to illegality or irregularity as to their respective assess- 
ments, and will pay the same, with interest thereon, at the rate of 
not exceeding six per centum per annum, as shall by ordinance or 
resolution of the common council of such city, or board of trustees 
of such to%vn, be prescribed and required ; he or they shall have 
the benefit of paying said assessments in ten annual installm.ents, 
as hereinafter provided. Any owner of any lot who has been as- 
sessed more than the sum of fifty dollars thereon for the cost of 
such improvement, who will not promise and agree in writing as 
herein provided, and all other owners of lots or parcels wherein 
assessments less than fifty dollars have been, or have heretofore 
been made against any one lot or parcel, shall be required to pay 
his or their assessment in full when made, and the same may be 
collected according to the provisions of amended section ten 
[§3292/'] of this act, or the contractor or his assigns may foreclose 
such assessment as a mortgage is foreclosed in any court of com- 
petent jurisdiction, and shall recover in addition to the amount of 
such assessment with interest, all costs, and a reasonable attorney's 
fee. Whenever any payment shall be made upon any of such 
assessments, it shall be the duty ot the treasurer, contractor or 
owner of the assessments, bonds or certificates, or installments 
of assessments, as hereinafter provided, receiving such payment, to 
enter upon the proper record the receipt of such money, and 
such receipt shall be a discharge of the lien of such assessments 
to the extent of such payment, and upon the payment of any 
bonds or certificates as are issued under this act, they shall be 
surrendered to and cancelled by the treasurer ; when bonds have 
been requested as aforesaid, then the common council of such 
city or board of trustees of such town shall cause the said assess- 
ments amounting to more than fifty dollars and bonds requested 
therefor to be placed upon the city or incorporated town tax 
duplicate and charged against the several lots or parcels of grounds 
as follows, [viz.]: Ten per cent, for each successive year for ten 
years, to which several amounts shall be added and placed on the 
duplicate, interest at six per cent, per annum, payable semi-annu- 
ally, which shall be calculated from the time of the acceptance of 
the work by the common council or board of trustees, until the 
several allowances fall due; and the first ten per cent, shall be due 
and payable when the first tax falls due, and is payable after such 
assessment is made ; and said assessment, together with the 
interest thereon, shall be a lien upon the several lots or parcels of 
ground to the same extent that taxes are a lien upon such property, 
and shall be collectible in the same way that taxes arc collectible, 



§3292^] IMPROVEMENT OF STREETS. [388 

or In such manner as the common council or board of trustees, 
by ordinance, shall prescribe ; and the law governing the collection 
of taxes shall, so far as the same is applicable, regulate and govern 
the collection of such assessment, and such assessment, and the 
proceeds arising therefrom, shall constitute a special fund for the 
payment of the costs of such street, alley and sewer improve- 
ment, and the bonds and certificates hereinafter mentioned, and 
for no other purpose. 

1. The notice provided for in this section is sufficient to protect the rights 
of the property holders affected, 124 Ind. 292; 125 Ind. 457, 

2. The citj or town is liable to pay in cash the expense of so much of street 
and alley improvements as are occupied by the street and alley crossings^ upon 
the completion and final estimate of the work, and hence no debt results from 
such improvement, 124 Ind. 292. 

3. The filing of a -waiver under this section precludes the land-owner ques- 
tioning the validity of the provision of the act that "no suit shall lie to restrain 
or enjoin the collection of such assessment," and that the validity of such assess- 
ment shall not be questioned. But these provisions apply only to those persons 
who, in consideration of their right to pay their assessments in semi-annual in- 
stallments, agree in writing, to be filed with the clerk, that they will not make 
any objection to the legality or regularity of their assessments, and is constitu- 
tional, 124 Ind. 292. 

Order of Reference. 

Ordered that the final estimate and report of the city civil engineer for 
the improvement of Oak street, between Olive and Pine streets, made to this 

council on the day of ,18 — , be and the same is hereby referred to 

the committee on streets and alleys; and the clerk is hereb}^ ordered to give the 
proper notice that said committee will meet at the council chamber at 7:30 

p. m. on the day of , 18 — , where a hearing can be had upon said 

report. 

Notice.— Street Assessment Street. 

, Ind., , 18—. 

Notice is hereby given that on the day of , 18 — , at ten 

o clock a. m., in room 4, in the office of the city cleric of said city, before the 
committee on streets and alleys of the common council, a hearing will be had 
on the final estimate, as submitted by the city civil engineer to the common 

council on the day of , iS — , of the costs of grading and 

street and sidewalks, from street to street, in the city of Indiana- 
polis, Ind., pursuant to special ordinance No. , 18 — , and that at same 

time and place said committee will consider said final estimate. All interested 
persons are notified to be present and make objection thereto, if any they have. 

Attest: The Common Council. 

City Clerk. 

Report of Committee. 

To the Common Council of the City of .- 

The undersigned, members of the committee on streets and alleys, to 
which was referred the final estimate and report of the city civil engineer in 
favor of . contractor for the = 



pursuant to special ordinance No. , dated , iS — , respectfully report 



389I NOTICE AND ASSESSMENTS. [§ 3292^ 

that, pursuant to the annexed notice, they met at the council chamber of said 

citv at 7:30 p. m. on the day of , 18 — , and heard such objections 

and suggestions as any person interested in said improvement desired to make. 
After hearing such objections and recommendations, and viewing the improve- 
ment, they find that said estimate and report of said engineer is correct in every 
respect, and recommend its adoption and confirmation [or, they recommend that 
the followmg alterations therein be made, and when so made that the estimate 
and report be adopted, to wit: [Sci oiU the proposed correctio7is.\ 

Land-Owners' Objections to Committee's Report. 

To the Common Couficil of the City of • 

The undersigned, owner of lot 16 of Wilson's addition to said city, front- 
ing upon that part of Oak street lying between Olive and Elm streets of said 
city, which has recently been improved, objects to the report of the comrnittee 

of "streets and alleys, filed , iS — , touchmg the final estimate and report 

of the city civil engineer upon said improvement, for the following reasons, 
to wit: [Specifically state the objections. \ 

A. B. 
Estimate Resolution. 

Resolved, by the common council of the city of , Indiana, that the 

report of the committee on streets and alleys, of the common council, recom- 
mending that the final estimate, made by the city civil engineer, in favor of 

, contractor for the , pursuant to special ordinance No. , 18 — , 

be and the same is hereby approved — amended as follows: 

That the assessments set forth in said final estimate (as so altered and amended) 
are hereby approved and confirmed ; and there is hereby assessed against the 
several lots and parcels of ground, as described in said final estimate, the several 
amounts set opposite and assessed against said several lots and parcels of 
ground, respectively, for and on account of said improvement. 

The city clerk is hereby directed to place said assessments upon the city tax 
duplicate, and to charge the same respectively against the several lots and par- 
cels of ground against which they have been so assessed, as follows, to wit: Ten 
per cent, for each successive year for ten years, together with interest on the 
several amounts so assessed, at six per cent, per annum, payable semi-annually, 
calculated from the date of the approval of this estimate, until the several 
amounts fall due. The first ten per cent, of said assessments, with interest on 
the whole from the date of the approval of this estimate, shall be due and pay- 
able on the ■ Monday in , 18 — ■; the semi-annual interest on the un- 
paid balance shall be due and payable thereafter at the dates of the semi-annual 

payment of city taxes in each j'ear ; and on the Monday in , in 

each year thereafter one-tenth of the principal of said assessment, together wuth 
the semi-annual interest on the unpaid balance, shall be due and payable, until 
all is paid. 

Provided^ ho7veve7',That the above provision for extending said assessments 
upon the city tax duplicate, and collecting the same successively in annual and 
semi-annual installments of principal and interest respectively, shall apply only 
to the owner or owners of said lots or parcels of ground, who shall promise and 
agree, in writing, filed with the city clerk of this city, that, in consideration of 
having the right to pay his or their assessment or respective assessments in in- 
stallments, they will not make any objection to the illegality or irregularity as 
to their respective assessments, and will pay the same, when due, with interest 
thereon, not exceeding six per cent., as shall, by ordinance or resolution of ihe 
common council, be prescribed and required. 

The said assessments, together with interest thereon, shall, from the date of 
the approval of this estimate, be a lien upon the several lots and parcels of 
ground against which they are assessed respectively to the same extent that 
taxes are a lien upon such property; and the said assessments, when placed up- 
on the city tax duplicate, shall be collected in the same way that city taxes are 
collected; all said assessments not so extended upon the city tax duplicate, pur- 
suant to the above proviso, shall be at once due and payable and shall be col- 
lected by precept and sale, as now provided by law. 



§ 3292^] 



IMPROVEMENT OF STREETS. 



[390 



The proceeds from such assessments as are so placed on the city tax 
duplicate shall constitute a special fund to be applied to the payment of the 
costs of said improvement, and of the bonds and certificates to be issued there- 
for, and for no other purpose. 



Land-owner's Waiver and Agreement. 



-, Ind., 



We, the undersigned, owners of real estate abutting upon , from 

to , severally promise and agree, in consideration of having the 

right to pay, in installments, our respective assessments for the improvement 

of said , as provided for in special ordinance No, , 18 — , that we will 

not make any objection to any illegality or irregularity as to our respective 
assessments, and will pay the same when due, with interest thereon at such 
rate, not exceeding six per cent., as shall, by ordinance or resolution of the 
common council, be prescribed and required: 



Name of 0^vner. 


No. of 
Feet. 


Lot. 


Out-lot. 


Block. 


Name of Addition or 
Subdivision. 






1 










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39 1 ] * BONDS INTEREST LIEN. [§ 3292/^ 

Order of Common Council. 

Whereas, the following persons, respectively, owning the lots, tracts 
and parcels of land, situated in the city of , and State of Indiana, set op- 
posite their names, viz.: 



Owners" Name. 


No. Lot. 


Addition. Amount of Assessment. 











Which was assessed by this common council on the day of , 18 — , 

for the improvement of so much of Pratt street as lies between Delaware and 
Tennessee streets of this city, in the amounts respectively set opposite each 
above described lot, tract or parcel of land ; and 

Whereas, the owners of said lots, tracts and parcels of lands have each 
respectively filed with the clerk of this city a written release of any illegality or 
irregularity in said assessments in consideration of the privilege of paying said 
assessments in ten annual installments in accordance with the provisions of an 
act of the general assembly of the State of Indiana, approved March 8, 1889, and 
the amendments thereto, and agreeing to pay the amounts respectively assessed 
to each of them, with interest thereon at the rate of six per centum per annum, 
as shall by ordinance or resolution of this council be prescribed or required, 
therefore 

Be it resolved, that said agreements are hereby accepted, and the clerk of 
this city is hereby directed to place upon the city tax duplicate said assess- 
ments as above enumerated, and charge against said several lots, parcels and 
tracts of land as follows, viz.: Ten per cent, for each successive year for ten 
years, to which several amounts shall be added and placed on the duplicate 
interest at six per cent, per annum, payable semi-annually, which shall be 

collected from the day of , 18 — , [from the time of the acceptance 

of the zuork by the common council,] until the several allowances fall due. 



[1889, p. 237. Approved and in force March 8, 1889.] 

Sec. 3292//, Bonds — Interest — Lien. 8. The common council of 
such city or the board or trustees of such town, for the purpose of 
anticipating the collection of such assessments, shall have power to 
issue street or sewer improvement bonds for the purpose of raising 
money with which to pay for such improvements made, and in 
issuing such bonds the common council of such city or the board 
of trustees of such town shall be governed by the law now in force 
regulating the issuing of bonds by cities. The proceeds arising 
from said bonds shall be applied exclusively to and appropriated 
and used for no other purpose than the liquidation of the cost of 
the improvements in this act mentioned. Said bonds shall bear 
the name of the street or alley improved, or the sewer constructed, 
and shall be payable, in equal installments, out of the special fund 
hereinbefore provided in one, two, three, four, five, six, seven, 
eight, nine and ten years from date, and shall bear interest not to 
exceed six per cent, per annum, payable semi-annually. In case 
such city or incorporated town has any money on hand belonging 
to any fund, which will not be used within the maturity of any 



3292/^] 



IMPROVEMENT OF STREETS. 



[392 



such bonds, such city or incorporated town may invest such money 
in any of such bonds maturing before such money shall be needed. 
After the assessment, as herein provided, has been made by the 
common council of such city or the board of trustees of such town, 
no suit shall lie to restrain or enjoin the collection of such assess- 
ment, and the validity of such assessment shall not be questioned, 
and such bonds when issued shall transfer to the owner thereof all 
the right and interest of such city or incorporated town in and to 
such assessments and the liens thereby created with full power to 
enforce the collection thereof by foreclosure or otherwise under 
any of the provisions of this act. And all of such bonds shall be 
an equal lien upon the property so assessed without priority of 
one over another. [El. Sup. § 819.] 

See § 3158a for temporary investment. 

These bonds are not the city's obligation nor an indebtedness prohibited by 
the constitution, ^ 2§o. 124 Ind. 292. 



Bond Ordinance. 



Whereas, the final estimate and report of the city civil engineer upon 
the improvement of Ray street, from Pearl to Elm streets, shows that there is 
due thereon A. B., the contractor, $15,000.00; and 

Whereas, this council adopted and approved said estimate and report, pur- 
suant to the recommendation of the committee on streets and alleys, on the 
day of , 18—; and 

Whereas it appears that the following named persons, owners of the lots and 
tracts of land, situated within this city, set opposite their names as herein given, 
each lot or tract assessed respectively with the amount specified below, have 
each signed arid filed with the clerk of this city a written agreement promising 
and agreeing, in consideration of the right to pay their respective assessments 
in annual installments, to Avaive all objections to any irregularity or illegai- 
ity to such assessments, to wit: 



Name of Owner. Description of Land Assessed. 

1 


Amount of Assessment. 









Total, 



making a total amount of 



dollars and 



cents; therefore, 



Sec. I. Be it resolved bv the common council of the citv of 



that 



for the purpose of anticipating the collection of said assessment, improvement 
bonds be issued to the amount of $10,000.00 by this city for the purpose of rais- 
ing money with which to pay for said improvement. Said bonds shall bear the 
following statement, in addition to any other necessary statements : " Issued 
for the improvement of Ray street, from Pearl to Elm streets ; " and shall be 
payable in equal installments in one, two, three, four, five, six, seven, eight, 
nine, and ten years from date, bearing five per cent, interest per annum, pay- 
able semi-annually. 

Sec. 2. Said bonds shall be issued in the name of the city of , signed 

by the mayor and city clerk, and sealed with the corporate seal of said city; 



393] BONDS INTEREST LIEN. [§ 3292^ 

but the signature of said major and clerk to the coupons may be lithographed 
instead of being written. 

Sec. 3. This ordinance shall be in force from and after its passage. 

[When the aggregate amount due from the land-owners assessed with more 
than $50 each is less than the amount due the contractor, bonds can not be 
issued for the entire amount of the assessment.] 

Improvement Bond. 

No. United States of America. $ 

City of , Coti7ity, State of Indiana. 

The city of , in county, and State of Indiana, prom- 
ises to pay to , or bearer, at the office of its treasurer, the sum of 

dollars, as follows: Ten per cent, thereof on the day of , iS — , and 

ten per cent, on the day of of each 3 ear thereafter, until the whole 

is paid, with interest at six per cent, per annum upon the unpaid part thereof, 

payable semi-annually upon the days of and in each year 

until all is paid. Said installments of principal and said semi-annual interest 
shall be paid according to the coupons hereunto attached, out of the assess- 
ments made upon the following described real estate in the city of , 

county, Indiana. 

to be collected in payment of the proportionate share of the total cost of the 

improvement of , from to , as charged against said real 

estate, which assessments in the order of their collections are severally pledged 
to the payment of said coupons, without relief from valuation or appraisement 
laws. The several coupons shall be detached and cancelled in their order, 
when paid, and on payment of all said coupons this bond shall thereby be fully 
paid, and shall be surrendered and cancelled. 

The city reserves the right to redeem this bond, at any time, by payment 
of all unpaid installments of the principal, and also the interest to maturity on 
the first coupon thereafter maturing. 

This bond is issued pursuant to the provisions of an act of the general 
assembly of the State of Indiana, approved March 8, 1889, providing for street, 
alley, and sewer improvements in cities and towns, and for the mode of making 
assessments and issuing, bonds in payment of the costs of such improvements, 

and in pvirsuance of the provisions of general ordinance No. , 18 — , of said 

city, ordained and established the day of , 18 — . 

In witness whereof the common council of the city of , Indiana, have 

caused this bond and the coupons hereto attached to be signed by its mayor, and 
attested by the city clerk, and the corporate seal of said city affixed hereto, 
this day of , 18 — . 



Attest: 



Mayor. 



City Clerk. 

Coupon. 

The City of , Indiana, 

On the iirst day of , 18 — , will pay 

the bearer at the office of its treasurer 

dollars, being ten per cent, of the 

principal, together with the accrued inter- 
est due on improvement bond. 

No. 



Mayor. 

Attest: 



City Clerk, 



§ 329^0 



IMPROVEMENT OF STREETS. 



[394 






to 
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Sec. 3292/. Certificates of estimates — Enforcement of liens. 9. 
It shall be lawful for such city or incorporated town to provide by 
ordinance for the issuance of certificates or bonds to contractors, 
who under contract with the city shall have constructed any such 
improvement, in payment therefor, each of which certificates or 
bonds shall bear the name of the sewer, street or alley improved, 
the time the same shall run, not to exceed ten years, the rate of 
interest the same shall bear, not to exceed six per cent, per annum, 
payable semi-annually, and such certificates and bonds shall trans- 
fer to the contractor and his assigns all the right and interest of 
such city or town to, in and with respect to every such assessment 
and the lien thereby created against the property of such owners 
assessed as shall avail themselves of the provisions of this act to 
have their assessments paid in installments, and shall authorize 
such contractor and his assigns to receive, sue for and collect, or 
have collected, every such assessment embraced in any such cer- 
tificate or bond, by or through any of the methods provided by 
law for the collection of assessments for local improvements, in- 
cluding the provisions of this act. And if the city or town shall 
fail, neglect or refuse to pay said certificates or bonds, or to 
promptly collect any of such assessments when due, the owner of 
any of such certificates or bonds may proceed in his own name to 
collect such assessment and foreclose the lien thereof in any court 
of competent jurisdiction, and shall recover, in addition to the 
amount of such bonds or certificates and the interest thereon, a 
reasonable attorney's fee, together with the costs of such suit. 
Any number of holders of such certificates or bonds for any single 
improvement may join as plaintiffs, and any number of owners of 
the property on which the same are a lien may be joined as de- 
fendants in such suit. And such bonds and certificates shall be 
equal liens upon the property for the assessments represented by 
such bonds or certificates without priority of one over another to 
the extent of the several assessments against the several lots and 
parcels of lands. [El. Sup. § 820.] 



395] 



ASSESSMENTS. 



[§32952" 



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§ S^QV] improvement of streets. [396 

[1891, p. 323. Approved and in force March 6, 1891.] 

Sec. 3292/'. Collections. lo. In case any of the owners of lots 
or parcels of grounds on which such assessments have been made 
shall fail, or refuse, for the space of twenty days after the date of the 
estimate to pay the amount thereof due by such person to such 
contractor, such contractor shall file his affidavit in the clerk's office 
of said city, stating that the whole or some part of said assessment 
remains unpaid showing the amount paid and the amount due ; 
that the estimate thereof has been duly made, and that the work 
estimated has been done according to contract, it shall be the duty 
of the clerk at the next, or any subsequent, meeting of the com- 
mon council to report the said affidavit to the council, whose duty 
it shall be to cause a precept to issue for the collection of such 
assessment, or any unpaid balance thereof; which precept shall be 
signed by the mayor and attested by the clerk, and sealed with 
the seal of said city, and shall set forth the name of the person 
against whom the assessment is made; the description of the lot 
or land on which it is made ; the amount of such assessment and 
the date of the estimate, which shall be directed to the treasurer 
of such city, commanding him to make such assessment, or unpaid 
balance thereof, within ten days after receiving such precept, of 
the owner in whose name such assessment is made; which precept 
the clerk shall forthwith deliver to the treasurer, who shall serve 
the same by reading the same, personally, to such owner, or by 
leaving a copy of such precept at his last or usual place of resi- 
dence ; or, if such owner be unknown, or not a resident of such 
city, then by publication for three successive weeks in a weekly 
newspaper printed and published in the city, briefly setting forth 
the facts of the estimate, the amount due, that the work has been 
done as contracted, the name of the person whose property is to 
be sold, the description of the property, and the date of the order 
of said precept by the said council, and giving notice that if such 
assessment be not paid within twenty days after publication, he 
will proceed to make the same by levy and sale of the lot or land 
whereon the same is assessed. Any owner of land or his repre- 
sentatives aggrieved by such precept, may appeal therefrom, with- 
in twenty days after such demand or publication, to the circuit 
court of the county wherein such city is situated, upon filing suffi- 
cient bond with the clerk of said city, conditioned for the payment 
of whatever judgment may be rendered against such appellant in 
said court; and such appeal shall stay all proceedings by such 
treasurer. And the trial of such appeal shall be conducted as 
other trials of civil causes are conducted in said courts : Provided, 
That no question of fact shall be tried which may arise prior to the 
making of the contract for the said improvement under the order 
of the council. The clerk shall, upon the filing of said bond, 
forthwith make out and certify, under his hand and official seal, a 
true and complete copy of all papers connected in any way with 



397 j COLLECTIONS. [§ 3292/' 

the said street improvement, beginning with the order of the coun- 
cil directing the work to be done and contracted for, and including all 
notices, precepts, orders of council, bonds and other papers filed 
in said matter — which transcript shall be in the nature of a com- 
plaint, and to which the appellant shall answer upon rule ; and in 
case the court and jury shall find, upon trial, that the proceedings 
of said officers, subsequent to said order directing the work to be 
done, are regular — that a contract has been made, that the work 
has been done, in whole or in part, according to the contract, and 
that the estimate has been properly made thereon — then said court 
shall direct the said property to be sold and conveyed by the 
sheriff thereof, as the said treasurer is hereinafter directed to sell 
and convey property liable to street improvements: Provided, 
That nothing herein shall be so construed as to prevent any person 
from obtaining an injunction upon the proceedings prior to the 
making of any such improvements. If no such appeal shall have 
been taken as aforesaid, it shall be the duty of such treasurer, 
within ten days after the expiration of said twenty days, to levy 
said precept upon the lot or land therein described, and to sell the 
same, or so much thereof as may be necessary to pay such assess- 
ment, with costs and charges. But before any such sale, he shall 
give notice of the time and place thereof, by advertising the same 
for three weeks successively in a newspaper printed and pubHshed 
nearest to such lot or land, if any such be printed and published 
within the county wherein such city is situated, and by posting up 
written or printed notices thereof in at least three public places in 
said city. And every such sale shall be by public auction, and 
upon or near the premises, or in the city court-room of said city, 
in the discretion of said treasurer ; and no sale of said lot or land 
previous or subsequent to the date of such estimate, and subse- 
quent to the date of such petition or determination of the common 
council to make such improvement without petition, shall invali- 
date or affect any sale thereof in pursuance of this act. Upon the 
sale of any lot or land by virtue of such precept, and the payment 
of the purchase-money, the treasurer (or in case of his death or 
going out of office, his successor) shall execute, acknowledge and 
deliver to the purchaser a certificate of conveyance for the prem- 
ises; which shall be valid and effectual to convey all the rights, 
title and interest of any such owner or purchaser from him as 
aforesaid, except as hereinafter provided, and shall be prima facie 
evidence of all the facts recited therein. In case the purchaser 
of any real estate under a precept, as aforesaid, having paid the 
purchase-money therefor, shall die before, a certificate of convey- 
ance, as herein provided, shall have been executed to him, the 
treasurer shall convey the same to the heirs or devisees of such 
deceased purchaser. The proceeds of any such sale shall be ap- 
plied as follows, to wit : 

Firstly. To the payment of such assessment, with interest there- 



§ 3292;'] IMPROVEMENT OF STREETS'. [398 

on from the date of such estimate, and all costs accrued thereon 
by reason of said sale ; and, 

Secondly. The residue of such proceeds shall be paid to the 
owner, or his or her heirs or representatives, of such real estate or, 
if unknown, it shall be paid into the city treasury; and such city 
shall at all times be responsible to such owner, heirs, or represent- 
atives for such residue. The purchaser under such precept shall 
hold such real estate subject to the lien of the unpaid part of its 
proportion of the whole cost of the improvement. The treasurer 
shall be entitled to a commission of five per cent, on the first hun- 
dred dollars, and three per cent, on any excess above that sum ; 
but when the money is paid to him without sale, one-half commis- 
sion only shall be received by him. For levying on the real estate 
and advertising the same, he shall receive one dollar; for personal 
demand for payment, twenty-five cents ; for return of the precept, 
with his doings thereon, one dollar ; for making certificate of sale 
on real estate, one dollar. He shall indorse on said precept the 
time of receiving the same, and, within three months thereafter, 
he shall make return thereof to the clerk, with his proceedings 
thereon. Any purchaser failing to pay the purchase-money shall 
be subject to the like penalties and proceedings as purchasers at 
sheriff's sale are by the laws of this State. The owner of any lot 
or land sold as aforesaid, or his agent or attorney, heirs cr rep- 
resentatives, may redeem the same .at any time within one year 
after the day of sale, by paying to the purchaser, or to the city 
treasurer for the use of the said purchaser, or his heirs or assigns, 
the sum mentioned in his certificate, and the amount of all subse- 
quent assessments paid by the purchaser, with fifty per cent, on 
the whole sum, and interestfrom date of purchase or time of pay- 
ment : Provided, That infants, idiots, insane persons, and femnies 
covert, may redeem any such lot or land belonging to them, sold 
for assessment, as aforesaid, within one year from expiration of 
such disability. Claimants of apart of such land, or of any individ- 
ual part of the same, may redeem the whole as other owners may 
redeem. If such owner, or other person on his behalf, shall fail to 
redeem such land within one year, as aforesaid, at the expiration 
thereof, and on production of the certificate of purchase, the treas- 
urer shall execute to the purchaser, his heirs or assigns, in the 
name of the city, a conveyance of the real estate so sold, which 
shall vest in the grantee an absolute estate in fee-simple, subject, 
however, to all claims which the c^ty may have thereon for assess- 
ments, or liens or other incumbrances. Such certificate and final 
conveyance shall resemSle, as nearly as may be, the certificate and 
conveyance for tax sales, and be prima facie evidence of all the 
facts recited therein. 

For a form of afidarnt for a precept, an order for the issuance of a pre- 
cept, K frece;pt, notice of issuance of precept, notice of sale or precept, certificate 
of sale, assignjne7it of certificate of sale, deed, apfeal bond, and transcript, see 
k 3165. 



399] PARKS. [§§ 3292/^, 3292/ 

Sec. 3292/^. Not applicable to large cities. 4. The provisions 
of this act shall not apply to cities of 100,000 population, or more, 
according to the last preceding United States census. 



ARTICLE 5^— PARKS. 

SEC. SEC. 

3292/. Parks — Condemnation proceedings. 3292^. Oath and Bond. 

22g2m. Duties of commissioners. 3292?^. Donations, may accept. 

3292//. Tender. 3292t;. Park tax. 

32920. Acceptance or refusal of assessment. 329220. Control of parks — Pay of commission- 

3292/. Rules and regulations for park. ers. 

3292^. Tax levy. 3292^^. Accounts and receipts. 

3292^. Laws repealed. 3292J/. Additional power of council. 

32925. Board of park commissioners in cities. 

[1891, p. 116. Approved and in force, March 5, 1891.] 

Sec. 3292/. Parks — Condemnation proceedings, i. The common 
council of any city or board of trustees of any incorporated town 
which shall, by ordinance or resolution, decide to estabHsh, locate, 
lay out or improve any public park, parks or grounds, or to make 
extension of such parks or grounds where they have heretofore been 
located, estabhshed, improved or commenced, shall have authority 
to locate such parks or public grounds, with all appendages, and 
lay out and open such roads, streets, avenues or drives as may be 
required for such improvement, and in case the use of any lands, 
town lots, water rights or easements, or of any pool, Jake or nat- 
ural stream of water, shall be found necessary for the establish- 
ment, location, maintenance and improvement of such, parks or 
grounds, it shall be lawful for such common council or board of 
trustees, by themselves or agent, to enter upon and take possession 
of and condemn the same for these uses: Provided, That such 
lands, town lots, water rights, pools, lakes and natural streams of 
water shall not be used for any other purpose than for such public 
parks or public grounds. For the purpose of such condemnation 
and use such common council or board of trustees shall have juris- 
diction for five miles beyond the limits of such city or town : Pro- 
vided furtJier^ That before such common council or board of 
trustees shall proceed to take possession of such lands, lots, water 
rights, easements, pools, lakes and natural streams of water for 
the purpose above mentioned, they shall apply to the judge of 
the circuit court to appoint three commissioners, residents of 
such city or town, who shall be disinterested free holders, to 
appraise and assess the damages accruing to the owners of any 
lands, lots, water rights, easements, pools, lakes and natural 
streams of water so taken and condemned for said public purpose. 
And said commissioners shall, before they proceed to perform 
their duties as appraisers, take and subscribe an oath or affirma- 
tion faithfully to perform all their duties as such appraisers, which 
shall be indorsed upon or attached to their appointment, and file 



§ 3292/] PARKS. [400 

the same with the clerk of such city or town. Ten days' notice 
shall be given such commissioners by said council or board of 
trustees, through the city or town clerk, of the appraisement to be 
made, giving a complete description of the premises to be viewed. 
A like notice shall be given by personal service, or by leaving the 
same with some person of suitable age at their place of abode, to 
each of the owners or agents thereof of lands, lots, water rights, 
easements, pools, lakes or natural streams to be so taken for such 
public parks or grounds, as in civil cases. If the owners are un- 
known or non-residents of this State, publication of the same in one 
or more newspapers of the town of general circulation, or by post- 
ing up written or printed notices in six public places in such city or 
town, if there be no newspaper published therein, for three weeks, 
shall be deemed equivalent to such personal service. 

1. A description of each tract of land, Avith the name of the owner, should 
be set out in the resolution ; and also in the notice to the commissioners, in 
their appointment, in the notice to the owner thereof, and in the report of the 
commissioners. 

2. Parks in cities, see § 3106, clauses 28, 45 and 46. 



Resolution. 

Resolved, by the common council of the city of ■ — , That the 

following described real estate, situated in said city, county of , and State 

of Indiana, should be condemned and appropriated by the said city for the use 
and purposes of a public park, to wit: AH that parcel and lot of ground bound- 
ed by Grant, Main, Pike and Walnut streets, and owned by U. Z.; and the 

judge of the ■ ■ circuit court is hereby requested to appoint three residents 

of this city who are disinterested freeholders as commissioners to appraise and 
assess the damages that will accrue to the owners of said lot or parcel of ground 
by reason of the appropriation of said real estate. 

Appointment of Commissioners. 

At the request of the common council of the city of , State of 

Indiana, I hereby appoint A. B., C. D., and E. F. as three commissioners to 
appraise the damages accruing to U. Z. by reason of the condemnation of his 
land, to Avit : That lot or parcel of ground bounded by Grant, Main, Pike and 
Walnut streets of said city, for the purposes of a public park. 

Dated , 18.— 

R. M., 

Judge of the Circuit Court. 

[It is not necessary that a record be made of this appointment by the clerk 
of the circuit court. It must be filed with the city clerk and by him preserved,] 



Notice to Commissioners of their Appointment. 

To A. B., C. Z>., a7id E. F: 

You are herebj^ notified that on the day of , 18 — , the judge 

of the circuit court, State of Indiana, appointed you as three commis- 
sioners to appraise and assess the damages accruing to the owners of that lot or 
parcel of ground bounded by Grant, Main, Pike and Walnut streets, of the city 
of , State of Indiana, by reason of the condemnation and appropriation 



40l] CONDEMNATION PROCEEDINGS. [§3292/ 

thereof bv the council of said city for the purpose of a public park. Said land 

is owned bv U. Z. You will meet at lo a. m. on the day of , 18 — , 

at room four in the city hall, for said purpose. 

In testimony whereof, I have hereunto set my hand and the seal of said city 

this dav of , 18 — . 

[Citv'Seal.J L. X., 

Clerk of the City of . 

Marshal's Return of Service 

This is to certify that I served the annexed notice upon the within 
named A. B., C. D., and E. F., by giving to them a certified copy thereof on 

the dav of • , iS — , 

R. U., 

City Marshal. 

Certificate of Commissioners' Appointment, 

This is to certify that on the day of , 18—, A. B., C. D., 

and E. F. were appointed by the judge of the circuit court, at the 

request of the common council of the city of , State of Indiana, as three 

commissioners to appraise and assess the damages accruing to U.Z., the owner 
of all that tract of land bounded by Grant, Main, Pike, and Walnut streets of 
said city, in the county of , and State of Indiana, which tract, at said meet- 
ing, it was resolved by said common council to condemn and appropriate for 
the uses and purposes of a public park. You are therefore empowered, com- 
manded, and required to make said appraisement and assessment, and to make 
due return thereof to said common council ; and for that purpose will meet in 

room 4 in the city hall at 10 a. m. on the day of , 18 — ^. 

In testimony w^hereof, I have hereunto set my hand and the seal of said city 
this dav of , 18 — . 

[City^Seal.] L. X., 

Clerk of the City of . 

Oath. 



State of Indiana^ County of , .t^.- 

We, A. B., C. D., and E. F., each do severally and solemnly swear that 
we will faithfully perform all our duties as appraisers of the land described in 
the annexed appointment and will faithfully perform our duties as such com- 
missioners. So help us God. 

A. B., • 
C. D., 
E. F. 

Subscribed and sworn to before me this dav of , 18 — . 

[Notary Seal.] ' T. L. 



Notary Public. 



Notice to Land-Owner. 



Notice is hereby given to U. Z. that on the day of , iS — ,, 

the common council of the city of , county of , and State of In- 
diana, by resolution duly adopted, resolved to condemn and appropriate for the 
uses of a public park the following real estate situated in said city, owned by 
you, to wit : All that tract or parcel of land bounded by Grant, Main, Pike, and 
Walnut streets of said city. And also appointed A. B., C. D., and E. F., three 
residents of said city and disinterested freeholders thereof, as commissioners to 
appraise and assess the damages accruing to you as owner of said tract or par- 
cel of land to be so taken and condemned for said public purpose. Said com- 
missioners will meet at room 4, of the city hall of said city, at 10 a. m. on 

the day of , 18 — , for the purposes of making said assessment 

and appraisement, of which meeting you will take due notice. 

In testimony whereof, I have hereunto set my hand and the seal of said city 
this — day of , 18 — , 

[City Seal.] L. X., 

Clerk of the City of ^ 

26 



§§ 3292;/^, 3292>'^] PARKS. [402 

Marshal's Return. 

Served the within notice on the within named U. Z. by giving him a 

certified copy thereof on the dav of , 18 — . 

R. U., 
City ^Marshal. 

[The above notice may be published for non-residents, and then the usual 
affidavit of publication should be filed with the city clerk.] 

Sec. 3292;;/. Duties of commissioners. 2. Such commission- 
ers, or a majority of them, shall, at the place and time indicated 
in such notice, proceed to an examination of such lands, lots, 
water rights, easements, pools, lakes and natural streams so desired 
to be taken or condemned for the use of such pubhc parks or 
grounds, and shall then and there estimate the damages accruing 
to the owner. They shall view the premises and receive any evi- 
dence touching the questions before them, and may, for that pur- 
pose, administer oaths to witnesses examined in relation thereto. 
They shall make a report in writing of the amount of damage, if 
any, accruing to each owner, and within ten days thereafter file 
the same with the clerk of such city or town. 

The oath to a witness may be administered orally. 



Oath for Witness. 

You do solemnly swear that you Avill well and truly answer such ques- 
tions as may be asked you in relation to the condemnation of certain lands for 

the uses and purposes of a public park within the city of , and State of 

Indiana. So help you God. 

Sec. 3292;?. Tender. 3. When such report is filed, as in the pre- 
ceding section required, the common council or board of trustees, 
if they accept the assessment so made, shall tender, or cause to be 
tendered, to the owner of such lands, lots, water rights, easements, 
pools, lakes, or natural streams, or their heirs or representatives, 
the damages awarded by such commissioners, or if not found within 
the city or town, or the award is not accepted, then the same shall 
be kept by the treasurer as a special deposit, subject to the order 
of such owner or his heirs or representatives. 

Commissioners' Report. 

To the Cotn^non Conncil of the City of ; 

We, A. B., C. D., and E. F., three commissioners appointed bv you on 

the ■ day of , 18 — , to appraise and assess the damages accruing to 

U. Z., the owner of all that tract of land bounded by Grant, Main, Pike and 

Walnut streets of said city, county of , and State of Indiana, that may be 

occasioned by the condemnation and appropriation of the same for a public 
park, respectfully report that they met at room four of the city hall of said city 

at 10 a. m. on the day of , 18 — , pursuant to the notice of the clerk 

of said city, and having previously taken the oath required of them by statute, 



403] ASSESSMENTS. [§ 3292^ 

proceeded in the presence of said U. Z. to examine said tract of land, and after 
hearing such evidence as was oiTered by said U. Z. and such other as they desired 
to hear, toiiching the questions before them, and we did then and there esti- 
mate the damages accruing to said U. Z. at dollars and cents, 

which we return as the true amount of damages that will be due him by reason 
of said condemnation and appropriation. 

A. B., 
C. D., 
E. F., 

Commissioners. 

Sec. 3292^. Acceptance or refusal of assessment. 4. The com- 
mon council or board of trustees shall within twenty days from the 
filing of said report, either accept or reject the terms of the same 
in whole or in part, and all parties aggrieved by such report may 
appeal therefrom, at any time within thirty days after the filing 
thereof, to the circuit court of the county, upon filing the usual 
bond with the clerk of such city or town for the payment of costs, 
but no such appeal shall prevent any such city or town from pro- 
ceeding with said appropriation, construction and improvement, 
as if no appeal had been taken. No other question shall be de- 
termined than the regularity of the proceedings in the suit, and 
the amount of damages sustained. 

1. The appeal bond should accompany the transcript, and need not be set 
out at length in it. 

2. The report can be referred back to the commissioners for correction of 
errors ; but they can not change the damages as assessed, nor can the council 
require them to do it. If the report is rejected, other proceedings may be at 
once instituted for the same purpose. 



Acceptance of Report and Condemnation. 

Resolved, that the report of A. B., C. D., and E. F., three commission- 
ers appointed by this council on the daj^ of , i8 — , to assess and ap- 
praise the damages accruing to U. Z., by reason of the proposed condemnation 
and appropriation of all that tract of land bovmded by Grant, Main, Pike and 

Walnut streets of this said city, county of , and State of Indiana, be and 

the same is hereby fully accepted; and the tract of land above described is 
hereby condemned and appropriated by this city, by virtue of the statute in 
such cases made and provided, for the uses and purposes as a public park for 
said city forever, as fully as if the said city was the owner in fee-simple thereof 
and devoted the same to that use and purpose ; and the treasurer is herebv 
ordered to tender to said U. Z. the amount of damages assessed in his favor, 

by said commissioners, to wit: $ ; and for that purpose said amount 

is hereby appropriated out of the general funds of said city not otherwise appro- 
priated. 

Appeal Bond. 

We, U. Z., R. S. and L. V., are bound unto the city of , State of 

Indiana, in the penal sum of dollars, which we severally bind ourselves 

well and truly to pay. 

The condition of this obligation is, that whereas the said U. Z. has appealed 

to the circuit court from the proceedings of said city condemning and 

appropriating for the uses and purposes of a public park thereof all that tract 
or parcel of land bounded by Grant, Main, Pike and Walnut streets of said 
city, which condemnation and appropriation was made on the day of 



§§ 3292/ — 3292^] PARKS. [404 

, iS — . Now if the said U. Z, shall prosecute his said appeal to a final 

judgment and pay all costs that maj be adjudged against him, then this bond 
shall be null and void, otherwise in full force and effect. 

Witness our hands and seals this daj of- , iS — . 

U. Z.,[Seal.] 
R. S., [Seal.] 
L. V. [Seal.] 
Approved : 

L. X., 

Clerk of the City of , 



Transcript. 

Be it remembered that on the day of , iS — , at a regular 

meeting of the common council of the city of , State of Indiana, the fol- 
lowing proceedings were had and held by said council as shown by the records 
and papers of said council, on file in the ofiiceof the clerk of said city, viz.: 
[Set out the ?'esolution and journal entry of the appointtneiitof the c07n7nissioners.'\ 
Thereupon, the following notice to said commissioners was issued by the 
clerk of said city and served by the marshal thereof, viz.: 

\Set out the notice and marshaVs returji.^ 
And, thereupon, the following appointment was issued to said commissioners, 
who accepted the same and took and subscribed the oath thereto attached, viz.: 
\Sct out the appointment and oath.\ 
And, thereupon, the following notice was issued and served, as shown by the 
return of the marshal, attached thereto, viz.: 
\Set out the notice to land-oxviiers and, the marshaVs return attached thereto.^ 

And, be it further remembered that on the day of , 18 — , said 

commissioners filed with the clerk of said city the following report, viz,: 
\Set 02it the commissioners'' report.\ 

And, be it further remembered that on the day of , 18 — , at a 

regular meeting thereof, the following further proceedings were had and held 
by said council, and duly entered of record, viz.: 

\Set out the resolution of acccpta?ice.] 

Be it also further remembered that on the day of , 18 — , the said 

U.'Z. filed his appeal bond, with R. S. and L.V. as sureties, with the clerk of said- 
city, praying an appeal to the ^ circuit court. 

In testimony whereof, I have hereunto set my hand and seal of said city this 

day of , 18 — . 

[City Seal.] L. X., 

Clerk of the City of . 

Sec, 3292/. Rules and regulations for parks. 5. The common 
council of any city or board of trustees of any town which may have 
established, located or laid out any public park or grounds under 
the provisions of this act is hereby authorized and empowered 
to pass such ordinances, rules and regulations with regard to the 
laying out, improvement, preservation and ornamenting and man- 
agement of such parks arid public grounds as they may deem 
necessary for that purpose. 

Sec. 3292^, Tax levy. 6. The common council [or board of 
trustees] of such cities [or towns] shall have the power to levy a 
tax not exceeding one cent on each one hundred dollars of prop- 
erty to defray the expenses of purchasing said park or parks. 

Sec. 3292r. Laws repealed. 7. All laws or parts of laws in 
conflict with the provisions of this act are hereby repealed. 



405] COMMISSIONERS OATH AND BOND, [§§ 32925, 3292^ 

[1S91, p. 479. Became a law bj lapse of time Avithout the Governor's signa- 
ture, March 10, 1891. Took effect June 3, 1891. 

Sec. 3292^-. Board of park commissioners in cities, i. The com- 
mon council of any incorporated city of this State of a population 
of over ten thousand and under one hundred thousand inhabitants 
shall be and are hereby authorized and empowered at its first 
regular meeting in June of any year after the passage of this act 
to select three park commissioners, who shall constitute and be 
designated a board of park commissioners, and who shall hold 
their office for one, two and three years respectively (as said com- 
missioners shall determine by lot at the time of their organization), 
and that annually thereafter said common council shall elect one 
park commissioner, who shall hold his office for three years, or 
until his successor is elected and qualified. 



Election. 

Resolved, that A. B. is hereby elected a park commissioner of this city 
for the term of three years from and after this date. 



Notice of Election. 

To A. Br. 

You are hereby notified that at a regular meeting of the common 

council of the city of , of the State of Indiana, held on the day of 

, 18 — , you were elected a park commissioner of said city for the term of 

three years from said date. 

In testimony whereof, I have hereunto set my hand and the seal of said city 

this day of , 18 — . 

[Corporate Seal.j X. L., 

Clerk of the City of . 

Sec. 3292^. Oath and bond. 2. Before entering upon the duties 
of their office, said park commissioners shall take an oath of office 
faithfully to perform the duties of the same. They shall meet v/ith- 
in five days after their election and organize by electing a president, 
secretary and treasurer. The treasurer shall give bond, with at 
least two sufficient freehold sureties, in a sum not less than double 
the amount that may come into his hands in any one year by vir- 
tue of his office, to be fixed and approved by the finance commit- 
tee of the common council. The president and secretary shall each 
give bond with like sureties in a sum to be fixed by the finance 
committee, and all of said bonds shall be approved by the common 
council of said city. 

Bond. 

Know all men by these presents that A. B,, C. I)., and E. F. are held 

and firmly bound unto the city of , State of Indiana, in the penal sum of 

dollars. 

The condition of the above bond is that, Whereas A. 13. was elected a jiark 

commissioner on the day of , iS — , for the term of three years from 

said date, for said city, by the common council thereof; and thiit whereas said 



§§ 3292?/ 3292^'] PARKS. [406 

park commissioners have met, organized and selected said A. B. as their treas- 
urer. Now if the said A. B. shall well and truly account for and pay over to 
the proper authorities all moneys, bonds, or property, that may come to his hands 
as such treasurer, then this bond shall be void, else in full force. 

Dated this day of , iS — . 

A. B., [Seal.] 
C. D., [Seal.] 
E. F., [Seal.] 

Oath. 

State of hidiana^ County, ss: 

I, A. B., solemnly swear that I will faithfully perform the duties of park 

commissioner of the city of , of said county and State. So help me God. 

A. B. 

Subscribed and sworn to before me this day of , 18 — . 

[Seal.] " L. T., 

Notary Public. 

[This oath should be indorsed on his bond, filed by the commissioner taking 
the oath.] 

Sec. 3292?/. Donations, may accept. 3. Such board of park 
commissioners shall be and is hereby authorized and empowered 
to accept and receive any bequests, donations or other gifts, of money 
or property made or given for the benefit of any public park under 
the supervision or control of the board, and to invest or apply the 
same in the manner designated by the donor : Provided^ That the 
board are of the opinion that such bequest, donation or gift would 
be beneficial to said park. 

Sec. 32927^. Park tax. 4. The common council of any such 
city shall have power to annually assess and collect as other city 
taxes are assessed and collected, a special park tax to be fixed by 
the common council not exceeding five cents on each one hundred 
dolllirs of taxable property real and personal within the city, which 
special park tax shall be paid to the treasurer of said board upon 
the warrant of the president, countersigned by the secretary 
thereof; and such tax shall be applied exclusively to the mainte- 
nance and improvement of the public parks of the city under the 
control and supervision of the board. 

Sec. 3292t£'. Control of parks — Pay of commissioners. 5, The 
park commissioners shall have charge of all parks belonging to the 
city and open to the use of the general public, together with the 
approaches thereto. They shall employ competent help, have 
power to make and enforce police regulations within and about the 
parks, and shall have care, management and improvement of all 
said park property of the city and all personal property used 
therein or connected therewith. Such park commissioners shall 
receive for their services such compensation as the common council 
of the city may deem just, which compensation shall be paid from 
the special park fund. 



40/] 



ACCOUNTS. 



[§§3292^, 3292,^ 



Sec. 3292.r. Accounts and receipts. 6. Such park board shall 
keep an accurate account of their receipts and expenditures of 
such revenues, and shall render to the common council annually, 
on the first Monday in January (and. oftener if required by such 
common council), a report in writing of such receipts and expen- 
ditures and their doings as such board. And for any failure of 
any of said park commissioners to faithfully discharge his duty or 
properly account for or deliver over to his successor any of the 
money or property in his possession, such park commissioner shall 
be hable on his bond. 

Report of Park Ccmmissioners. 

To the Commo7i Comic?! of the City of .■ 

The undersigned, park commissioners of said citj, hereby submit their 

report for the year ending on the first Monday in January, i8 — : 

Amount on hand at last report $ 

Amount received from taxes since last report 

Amount received from donations since last report 

Amount received by sale of since last report 

Total amount received ....,$ 



Thev are entitled to the following credits, viz.: 



To whom Paid. 


No. Voucher. 


When Paid. 


P^or what Paid. 











Total amount paid out 
Total amount on hand 



Dated 



All of which is respectfully submitted. 



A. B., 
CD.. 
E. F., 

Park Commissioners. 



Sec. 32927. Additional power of council. 7. The common 
council may make any further regulation for the government of 
said board and the furtherance of the purpose of this act not 
inconsistent therewith. 



CHAPTER XXIII. 

CORPORATIONS— TOWNS. 



ART. ART. 

1. liicorporation and Organizatio7i. 5. Openings a7id Vacations, 

2. Government and Powers, 6. An^iexation of Territory. 

3. Taxation. 7. Servers. 

4. Improvement of Streets. 



ARTICLE I— INCORPORATION AND ORGANIZATION. 



Polls — Opening and closing-. 
Inspector's duties. 
Officers to be elected. 
Who elected — Tie — Certificate. 
Clerk's duty. 
331 1. Trustees, how elected — Term. 
Vacancies. 
President — Oath. 
Corporate name. 

Order of incorporation, when conclu- 
sive. 
How old town may incorporate. 
Debts not affected. 
Dissolution of town — Proceedings. 
Rights and contracts not affected. 

[i R. S. 1852, P.4S2. Approved June II, 1852, and in force Maj 6, 1853.] 

Sec. 3293. Survey and map. i. Persons intending to make 
application for the incorporation of a town, as hereinafter provided, 
shall cause an accurate survey and map to be made of the territory 
intended to be embraced within the limits of such town. Such 
survey shall be made by a practical surveyor, and shall show the 
courses and distances of the boundaries thereof, and the quantity 
of land contained therein — the accuracy of which survey and map 
shall be verified by the affidavit of such surveyor, written thereon 
or annexed thereto. 

NECESSARY STEPS TO INCORPORATE A TOWN. 

The following steps are essential to the incorporation of a town: 

1. Survey a?id map. There must be a survey and map made by a practical 
surveyor, the accuracy of which must be attested by his affidavit, § 3293. 

2. Census. A census of the number of heads of families and inhabitants, 
resident in the town thirty days previous to applying for the incorporation, 
must be taken (3294), and its correctness verified by affidavit, § 3295. 

3. Posting survey ajid census. The survey, map, and census must be left at 
a convenient place within the town, for examination at a public place in the 

408 



SEC. 




SEC. 


3293. 


Survey and map. 


3306. 


3294- 


Census. 


MS: 


3295- 
3296. 


Survey, map, and census made public. 


Application to county board. 


3309- 


3297- 
3298. 


Hearing and order. 


3310. 


Notice to voters. 


3311- 


3299. 


Polls, how long open. 
Board of election. 


3312. 


3300. 


3313- 


3301- 


Election, and effect thereof. 


3314- 


3302. 


Districts. 


3315- 


3303- 


Re-districting. 




3304- 


Notice of corporation election. 


3316. 


3305- 


Annual election. 


3317. 
331S. 


3305^ 


Voting place. 


3305^ 


Laws repealed. 


3319. 



409] INCORPORATION. [§ 3293 

town, for at least twenty days before application to the board of county com- 
missioners, § 3295. 

4. P'etitio7i. The persons asking the incorporation must present a petition 
to the board of county commissioners, subscribed by at least one-third of the 
town voters, setting forth the boundaries, the number of acres and the resident 
population, verified by affidavit, § 3296. 

5. Notice. Notice of the intention to make the application must be given, 
and the petition presented at the time therein specified, § 3296, note 2. 

6. Order for an election. After proof that all the steps mentioned have 
been taken, the board orders an election to decide the question of incorporation, 
names the proposed town, and sets a day, and designates the place for the elec- 
tion, § 3297. 

7. Election notice. The county board gives ten days' notice of the election 
by publication in newspaper, and by posting up ten copies of such notice in the 
town, § 3298. 

8. Election. The election is conducted under the general election law, 
§ 47io?«, the polls opening at 8 a. m. and closing at 6 p. m., § 4698, There 
is but one polling place, § 3299. The voters first choose three inspectors, one 
of whom acts as a clerk, § 3300. The ballot is "j^es" or "no." The election 
board makes out a sworn statement of the result and files it with the county 
auditor, who lays it before the county board, § 3301. 

9. Order of incorporation. If there be a majority in favor of the incor- 
poration, the board makes an entry in its record to that effect, and declares the 
town incorporated. The order is conclusive of the fact of incorporation, § 3301 
and § 3315.' 

10. Wards. The election inspectors then divide the town into wards, from 
three to seven, § 3302. 

11. Election notice. They give ten days' notice of a town election, specify- 
ing the day, not exceeding twenty days from the date of posting the notices, 
§ 3304- 

12. Election. The election is held according to the general election law, 
§ 47io;;z, a poll being opened in each ward, § 3305a, note 2, from 8 a. m. to 
6 p.m., § 4698; § 3306, note. The inspectors for the incorporation election 
preside, § 3307, and declare the result, certifying to the result and filing the 
statement with the county clerk within ten days thereafter, § 3309. The entire 
town votes for all the trustees to be elected, and such trustees may be all elected 
from a single ward, § 331 1, note i. 

13. Officers elected. The of^cers elected are one trustee for each ward or 
district, a clerk, treasurer, § 3308, and marshal, § 3325. 

14. Record of election. The county clerk makes a record of the election, 
§ 3310, and issues certificates of election to those elected. These certificates 
should be issued within five days after the election, so those elected can take 
the oath of office, § 3313. 

15. Meeting- of hoard. As soon as the statement of the result of the elec- 
tion is filed with the county clerk, and the trustees have received their certifi- 
cates, they, or a majority of them, mutually meet and elect a president. 

NOTES. 

1. See notes to § 3031. That towns must be created by general lazv see 
§ 212, notes. Towns incorporated under special act previous to the adoption 
of the constitution were continued under their spec-ial charters, and such 
charters may be amended, § 235, notes, Clarksville, see § 235, note; ^ 3031, 
7iote 6. 

2. That this act is constitutional, see § 3031, note 2. Effect of amcndjucnt 
of general law, § 3031, note 5. Non-liability for legislative acts, § 3031, note 3. 
That a town can not be deprived of its powers of local self-government, see 
§ 3043, notes 2 and 3. 



§3293] TOWNS. [410 

3. A to^vn is not always a city; but a city is always a town, 55 Ind. 535 ; for 

town is 2^ ge7teric term, and comprehends cities, 24 Ind. 286. 
* 

4. In an action against a town, the contrary not appearing, it will \)Q pre- 
sumed that it was incorporated under the general law of the State, 55 Ind. 14; 
60 Ind. 327 ; 57 Ind. 192 ; 55 Ind. 210. See § 3031, note i. 

5. The inhabita?its, and not the officers, constitute the incorporation; and 
although such officers may have violated their duty, they may invoke the aid of 
the courts to protect the rights of the town, 114 Ind. 332 ; § 3036, 7iote 4. 

6. A part of a town can not organize itself into a separate town, 61 Ind. 97 
(overruling 50 Ind. 535); 47 Ind. 274. 

7. Courts will not take judicial notice of the exact location or territorial 
limits of a town, 76 Ind. 549 ; 28 Ind. 429 ; 65 Ind. 492. 

8. The validity of the survey and map can not be collateral I3' attacked 
after the incorporation ; especially if the town has exercised corporate powers 
over a well-defined territory, with knowledge of the public, for a long time, — as 
for twenty years, 82 Ind. 493. 

9. An act of 1861 legalized the incorporation of all towns made under the 
act of June 11, 1852, and before May 6, 1853, special ^^ts i86i,p.47; also in 1859, 
acts 1859, p. 206. 

10. Special acts have been passed legalizing the following towns, viz.: 
Alamo (Acts 1889, p. 13) ; Ambia (Acts 1885, p. 8); Angola (Acts 1883, p. 100); 
Argos (Acts i88i,p. 707); Auburn (Sp. Acts 1879, p. 204); Bedford (Acts 1889, p. 
202); Bloomington (Sp. Acts 1877, p. 23); Boswell (Acts 18S7, p. 5); Bourbon 
(Acts 18S9, p. 41) ; Bunker Hill (Acts 1887, p. 28) ; Burnettsville (Acts 1883, p. 
138); Butler (Acts 1879, p. 206) ; Cadiz (Acts 1883, p. 31); Cannelton (Acts 
1885, p. 7) ; Carbon (Acts 1S83, p. 112) ; Carmel (Acts 1889, p. 374); Carpenters- 
ville (Acts i89i,p. 31); Center Point (Acts 1889, p. 344) ; Chesterton (Acts 
1875, P- 155) • Cherubusco (Acts 1883, p. 82) ; Clifford (Acts 1891, p. 26) ; Dar- 
lington (Acts 1883, p. 138); Elliottsville (Acts 1889, p. 303) ; Fairland (Acts 
1877, p. 151) ; Fisher's Station (Acts 1891, p. 50); Fowler (Acts 1891, p.9); 
Geneva (Acts i88i,p. 706); Greenville (Acts 1891, p. 27) ; Hammond (Acts 
1891, p. 5) ; Huntington (Sp. Acts 1879, p. 217); Huntsville (Acts 1889, p. 347) ; 
Jasper (Sp. Acts 1S79, p. 220); Kentland (Acts 1873, p. 161); Laconia (Acts 
1885, p. 175); Lagro (Acts 1881, p. 710); Loogootee (Sp. Acts 1877, p. 151); 
Macy (Acts 1S91, p. 338) ; Martinsville (Acts 1875, p. 157) ; Middlebury (Acts 
1887, p. 7); Mishawaka (Acts 1857, p. 126); Mooresville (Acts 1873, p. 171); 
New Castle (Acts 1881, p. 47); New Haven (Acts 1885, p. 12); New Maysville 
(Acts i89i,p. 334); Noblesville (Acts 1877, p. 151) ; North Vernon (Sp. Acts 
1875, p. 63); Oakland (Acts 1883, p. iii); Orleans (Acts 1887, p. 38); Osgood 
(Acts i89i,p. 25); Owensville (Acts 1SS5, p. 150); Patoka (Acts 1891, p. 4); 
Pierceton (Acts 1887, p. 38); Pine Village (Acts i89i,p. 11); Portland (Acts 
1875, p. 158); Poseyville(x\cts i889,p.83) ; Redkey (Acts i889,p.7); Ridgeview 
(Sp. Acts 1877, p. 78); Roachdale (Acts 1883, p. 145; Acts 18S9, p. 219); Rus- 
sellville (Acts 1889, p. 347) ; Saltilloville (Acts 1891, p. 330); Scottsburgh (Acts 
1891, p. 303); Sheridan (Acts 1889, p. 6); Shoals (Acts 1877, p. 152J; Silver Lake 
(Acts 1883, p. 34) ; • Syracuse (Acts 1883, p. 12) ; Tipton (Acts 1875, p. 159) ; 
Walton (Sp. Acts 1879, p. 224); Warren (Acts 1889, p. 287); Washington (Acts 
1885, p. 128) ; Waterloo (Acts 1877, p. 153) ; Waynetown (Acts 1S83, p. 81); West- 
port (Acts 1891, p. 12). 



Survey and Oath. 

I hereby certify that I have made a survey of the proposed town of 

, which is as follows, to wit: Beginning at, etc., containing acres. 

I also certify that the accompanying map hereto attached is a correct map of 
said proposed town. 

A. B. 



41 1] 



INCORPORATION. 



[§§ 3294, 329: 



Stah- of Iiidinna, County of , .?,?. 

A. B., upon his oath says that he is a practical surveyor and that the 
above and foregoing statement is true, and that said map is an accurate map of 

said proposed town of . 

A. B. 

Subscribed and sworn to before me this dav of , 18 — . 

[Seal.] ■ CD., 

, . Notary Public. 

Sec. 3294. Census. 2. Such persons shall cause an accurate 
census to be taken of the resident population of such territory, as 
it may be, on some day not more than thirty days previous to the 
time of presenting such application to the board of county com- 
missioners, as hereinafter provided; which census shall exhibit the 
name of every head of a family residing within such territory on 
such day, and the number of persons then belonging to every such 
family; and it shall be verified by the affidavit of the person taking 
the same. • 

Census Roll. 

A census of the resident population embraced within the following ter- 
ritory, situate within the county of , State of Indiana, to wit: \Give the 

hou7idaries as established by the survey], containing acres, taken by the un- 
dersigned on the day of , i8 — . 



Heads of Families. 


Number of each Family. 


No. of \'oters. 









Total number of heads of families . 
Total number of resident population 

Total number of voters . 



A.B. 



State of Indiana^ County of , .t.?.- 

A. B. being duly sworn, upon his oath says that the above and foregoing 
contains a correct census of the heads of families, the resident population, and 

legal voters of the territory therein described, taken by him upon said 

dav of , 18 — . 



Subscribed and sworn to before me this 
rSeal.l 



dav of 



iS- 



A.B. 



L. X. 



Notary Public. 



[1855, P- ^26. Approved and in force February 23, 1S55.] 

Sec. 3295. Survey, map, and census made public. 3. Such survey, 
map, and census, when completed and verified as aforesaid, shall 
be left at some convenient place within said territory, for examina- 
tion by those having interest in said application, for a period of not 
less than twenty days. 

This section seems to require the affidavit of more than one person. 



§ 3296] TOWNS. [412 



Affidavit. 



State of Indiana, County of , ^?.t/ 

A. B. and C. D., upon their oaths, say that the survey and map, duly 

verified, to which this affidavit is attached, was left on the day of' , 

18 — , at the post-office, a public and convenient place within the territory 

therein described ; and that the same remained there until the day of 

, 18 — , subject to the examination and inspection of any one desiring to 

inspect or examine them. 

A.B., 
C. D. 

Subscribed and sworn to before me this day of , iS — . 

[Seal.] L. X., 

Notary Public. 

[i R. S. 1852, p. 4S2. Approved June 11, 1852, and in force May 6, 1853.] 

Sec. 3296. Application to eounty board. 4. Such application 
shall be by petition, subscribed by the applicants, and also by not 
less than one-third of the whole number of qualified voters residing 
within such territory ; and said petition shall set forth the bounda- 
ries thereof, the quantity of land embraced according to the survey, 
and the resident population therein contained, according to said 
census taken ; and the said petition shall have attached thereto, or 
written thereupon, affidavits verifying the facts alleged therein; 
and it shall be presented at the time indicated in the notice of such 
application, or as soon thereafter as the board can receive and con- 
sider the same. 

1. AVho are " qualified voters," see §§ 84 and 3223. 

2. This section evidently requires some notice to be given of the time when 
application will be made to the board of county commissioners ; yet there is no 
other provision touching the subject. A form is given below, which should be, 
perhaps, posted as required under § 3232. 



Notice. 

To WJi07n it May Concern : 

Notice is hereby given that the undersigned will present a petition to 

the board of commissioners of the county of , State of Indiana, on the 

day of , 18 — , praying that the following territory within said 

county be incorporated as a town, to wit: ^Describe the territory'.} 

A. B., 
C. D. 



Affidavit of Posting. 



State of Ijidiana, County cj , ,v\s-.- 

A. B. being duly sworn, upon his oath says that the annexed notice was 
posted up in three of the most public places within the territory described in 
said notice, to wit: \_Naine the places luhere posted. } Said notice was posted up 

at all of said places on the dav of , iS — , bv the undersigned. 

A. B. 

Subscribed and sworn to before me this day of , iS — . 

[Seal.] L. X, 

Notarv Public. 



413} INCORPORATION. [§ 329/ 

Petition- 

To tlie Board of Commissioners of the County of ? 

The undersigned represent to your honorable body that they constitute 
at least one-third of the voters of the following described territory, situate with- 
in said county of , State of Indiana, to wit: [Describe the territory by 

metes and bounds]^ containing acres ; that the resident population of said 

territory, according to a census thereof taken on the day of , 18 — , 

is '-. They pray that your honorable board will order an election for the 

purpose of incorporating said territory as a town under the laws of the State of 

Indiana, to be known as " The Town of ." 

A. B., 
CD., etc. 



State of Indiana^ County of , .?.?-• 

A. B. and CD., upon their oaths, sav that the facts set forth in the pe- 
tition to which this is annexed are true, and that the persons whose names are 
thereto attached personally signed the same. 

A. B., 
C, D. 

Subscribed and sworn to before me tliis dav of , 18 — . 

[Seal.] " L. X,. 

Notary Public. 

Sec. 3297. Hearing and order. 5. The board of county com- 
missioners, in hearing such application, shall first require proof, 
either by affidavit or by oral examination of witnesses before them, 
that the said survey, map, and census were subject to examination 
in the manner and for the period required by section three of this 
act [§ 3295] ; and if said board be satisfied that the requirements 
of this act have been fully complied with, they shall then make an 
order, declaring that such territory shall, with the assent of the 
qualified voters thereof, as hereinafter provided, be an incorporated 
town, by the name specified in the application aforesaid, which 
name shall differ from that of every other town in this State ; and 
they shall also include in such order a notice for a meeting of the 
qualified voters resident in said territory, at a convenient place 
therein, to be by them named, on some day within one month 
therefrom, to determine whether such territory shall be an incor- 
porated town. 

1. For proof of depositing the map and census in a public place, see § 3295; 
of notice and affidavit of posting, see § 3296 These affidavits are sufficient 
proofs when accompanied by the survey and map, with the affidavit thereto at- 
tached (§ 3293); and none other need be presented 

2. The filing of the petition gives the board of county commissioners yV^r/.?- 
dictiofi over the territory described in it and the survey; and such board can 
not be deprived of its jurisdiction by an adjoining city or town assuming to an- 
nex such territory. In such an instance an injunction will lie at the suit of any 
of the petitioners to enjoin such city or town from annexing the territory, 47 
Ind. 274. 

3. Ifthe board is satisfied that the requirements of the statute have been 
complied with, they must make the order; thev have fio discretion in the mat- 
ter, 47 Ind. 274; 76 Ind. p. 557; 78 111. 2^2. 

4. If the territory described in the petition embraces any part of an incor- 
porated to'vn or city the order can not be made ; the proposed town can not be 
incorporated, 47 Ind. 274; 6i Ind. 97 (overruling 50 Ind. 535). 



§ 3298] TOWNS. [414 

5. The board of commissioners act in 2^ judicial and not merely in an ad- 
ministrative or legislative capacity ; and an appeal lies from its decision, at 
least from a decision dismissing a petition, 76 Ind. 549 (overruling 73 Ind. 213); 

§3243- 

6. The board on the hearing can not take judicial notice of its own orders 
or judgments in a different case on the same subject, 76 Ind. 549. 

7. Courts take judicial notice of the incorporation of a town ; proof of that 
fact is unnecessary, 90 Ind. p. 551. 

Order-Book Entry. 

Whereas, A. B. and others, qualified voters, residing within the follow- 
ing described territory, situate within the county of , and State of Indiana, 

to wit: {Describe the territory], containing acres, have petitioned this 

board that said territory be incorporated as a town by the name of "The Town 
of ," under the laws of this State; and 

Whereas, said petition has been signed by at least one-third of the whole 
number of the qualified voters of said territory; and 

Whereas, there has been filed with this board an accurate survey and map, 
the accuracy of which has been duly verified, of said territory ; and 

Whereas, said survey and map was left at a public and convenient place, 
to wit: at the post-ofiice, within said territory, subject to the examina- 
tion of any person desiring to examine them, for a period not less than twenty 
days before the first day of the present term of this board; and 

W^hereas, a census of the resident population of said territory was taken 

showing that there was residing therein on the day of , 18 — , 

heads of families, having a population of , oi which were qualified 

voters; and 

Whereas, due notice of the intention to present said petition has been given by 

the petitioners for days by posting up written notices thereof in at least 

three of the most public places within said territory; and 

Whereas, this board is fully satisfied that all the requirements of the laws 
of the State of Indiana for the incorporation of towns have been fully complied 
with by said petitioners; therefore 

It is hereby ordered, that said territory be incorporated as a town, to be 

known as " The Town of ," if the qualified voters thereof assent thereto ; 

and it is further ordered that an election be held at the post-office, 

within said territory, between the hours of 8 a. m. and 6 p. m., on the 

day of , 18 — , of the qualified voters thereof, for the purpose of deter- 
mining whether said territory shall be incorporated as a town, notice of which 
election shall be given by the county auditor by ten days' publication in the 
Daily Argus of this county. 

Sec. 3298. Notice to voters. 6. The board shall give ten days' 
notice of such meeting by publication in a newspaper, if one be 
printed in such territory, and by posting up copies of said notice, 
not less than ten in number, at the most public places in said pro- 
posed incorporated town. 

Election Notice. 

Notice is hereby given that an election will be held at post-office 

within the following described territory, situate within the county of , 

and State of Indiana, by the qualified voters thereof, to Avit : {Describe it], be- 
tween the hours of 8 a. m. and 6 p. m. on the day of . i8 — , for the 

purpose of determining whether said territory shall be incorporated as a town 
under the laws of the State of Indiana. 

By order of the board of commissioners of the countv of . 

[Seal.] "^ L. U., 

Axiditor of the Countv of . 



415] INCORPORATION. [§§3299 330I 

Sec. 3299, Polls, how lon^ open. 7. At the meeting of the 
qualified voters, as herein provided, polls shall be opened at nine 
o'clock in the forenoon of such day, and shall be kept open until 
four o'clock in the afternoon, when they shall be closed. 

The time for the opening of the polls is qualified by the election law of 1889, 
§ 4698. There is onh' one voting place. 

Sec. 3300. Board of election. 8. The voters at such meeting 
shall first proceed to the election of three inspectors, who, after 
being duly chosen and qualified, and having elected one of their 
number clerk, shall, without delay, proclaim to the meeting that 
the poll is now opened, and that they are ready to receive the bal- 
lots of the voters. 

This section is not modified by the election law of 1889, and is in full force. 
The usual oath should be administered in writing. 



Oath. 

I, A. B., do solemnly swear that I Avill faithfully serve as inspector of 
the election held this day for the purpose of incorporating the proposed town 

of , situate within the county of , and State of Indiana. So help me 

God. 

A. B. 

Sec. 3301. Election, and effect thereof. 9. The qualified voters 
of said territory shall vote by ballots having thereon the word 
''Yes" or the word "No." And if a majority of the ballots 
given at such meeting shall have thereon the word "No," the 
voters of such territory shall be deemed not to have assented to 
the incorporation thereof as a town, and no further proceedings 
shall be had in relation thereto ; but if a majority of such ballots 
shall have thereon the word "Yes," such territory shall, from that 
time, be deemed an incorporated town, to have continuance there- 
after by the name and style specified in the order made by the 
board of county commissioners, as hereinbefore provided. And 
the inspectors of such meeting shall make a statement showing the 
whole number of ballots given at such meeting, the number hav- 
ing the word "Yes" thereon, and the number having the word 
"No " thereon; which statement shall be verified by the afifidavit 
of such inspectors, and shall be returned to such board of com- 
missioners, at their next session; who, if satisfied of the legality 
of such election, shall make an order declaring that said town has 
been incorporated by the name adopted ; which order shall be con- 
clusive of such incorporation in all suits by or against such cor- 
poration ; and the existence of said corporation, by the name and 
style aforesaid, shall thereafter be judicially taken notice of in all 
courts and places in this State, without specially pleading or alleg- 
ing the same. 

I. See notes to §§ 3035 and 3036* So far as applicable, the election law of 
1889 applies ; but that law is inapplicable to the printing of ballots or the use 



§ 330i] TOWNS. [416 

of an official ballot. There is no officer authorized to print the ballots used at 
this election. Election expenses are paid by the newly incorporated town ; if 
the proposed incorporation does not carry, there seems to be no provision 
authorizing their payment by the board of county commissioners or township 
trustee. 

2. Courts td^Q judicial hnoivledge of the incorporation of towns, and proof 
thereof is not necessary, 90 Ind. 545. The order of incorporation can not be 
collaterally attacked ; it is conclusive, 47 Ind. 274; 76 Ind. 549; 82 Ind. 493; 89 
Ind. 249. 'See §3315. 

'3. The town is not incorporated " in a proper sense, until its officers and its 
board of trustees shall have been elected and a president of the board desig- 
nated." And this is true even though an election has been held, no return of 
the result being made, and no order of incorporation being entered. In such 
an instance the township trustee may purchase a lot and build a school-house 
within the territory that it was attempted to incorporate, 38 Ind. 41. 

4. After election and qualification, the town school trustees are entitled to 
a part of the township school funds, in the proportion as the number of school 
children of the town is to that of the township ; and, after demand, may sue 
and recover that amount from the trustee ; and perhaps from the county 
treasurer, if he has not paid over the amount before demand to the township 
trustee, 64 Ind. 275 ; 89 Ind. 251. The town succeeds to the control of the 
school property within its limits and is entitled to a conveyance thereof to it, 
109 Ind. 559; 86 Ind. 582. See 37 Ind. 415; 63 Ind. 473; and 27 Ind. 465. 
The town can not exercise control over school property outside of its limits, 
56 Ind. 521. 

5. Process is served on the president of the board of trustees, R. S. 1881, 
§ 316; or in an action against the school town, on the school trustees, § 4536; 
55 Ind. 7. 

Election Return. 

The undersigned, A. B., C. D., and E. F., as inspectors, hereby certify 

that at an election held at the post-office, within the following described 

territory, situate within the county of , and State of Indiana, to wit: 

[Describe it\ between the hours of 8 a. m. and 6 p. m. on the day of , 

18 — , to determine whether said territory should be incorporated as a town under 
the laws of the State of Indiana, to be known as the " Town of ," the fol- 
lowing was the result of said election, to wit: 

Number of ballots having the word " yes" thereon 

Number of ballots having the word " no" thereon ... . • ... 



Majority in favor \or, against] the proposed corporation 
Dated, , 18—. 



State of Indiana, County of 



A. B., 
C. D., 

E. F., 

Inspectors. 



A. B., C. D., and E. F., upon their oaths, say that the above and foregoing is 
a full, true and accurate return of the result of the election held at the time, 
and for the purpose therein specified. 



A. 


B., 


C. 


D., 


E. 


F. 


jO 




L. 


X., 


Notary 


Public 



Subscribed and sworn to before me this day of 

[Seal.] 

Order-Book Entry. 

Whereas, on the — day of , 18 — :, A. B. and others presented 

a verified petition to this board, praying that the territory hereinafter described 
be incorporated as a town under the laAvs of the State of Indiana ; and 



417] ELECTIONS. [§§3302—3304 

Whereas, this board, after having examined said petition and having ad- 
judged it sufficient, as well as the survey and map verified bv affidavit, and 
after having received proof of the posting of notices of an intention to present 
said petition, ordered an election for the submission to the qualified voters of 
said territory whether it should be incorporated as a town, to be held on the 

day of , iS — , between the hours of 8 a. m. and 6 p. m., at the 

post-office; and 

Whereas, said election was held in pursuance of said order, after ten days' 
notice given by the auditor of this county in the Daily Ar^?is,a daily paper 
printed and published in this county, at the time and place designated in said 
order and notice; and 

Whereas, it appears by the verified return of A. B., C. D., and E. F., inspect- 
ors duly chosen and qualified at said election, to this board, that the number 

of ballots cast thereat having the word "yes" thereon was , and the 

number cast having the word "no" thereon was , leaving a majority of 

in favor of said proposed incorporation ; and 

Whereas, this board is fully satisfied of the legality of said election; therefore 

It is declared, ordered, adjudged and decreed that the following territory, 

referred to aforesaid, situate in the county of , and State of Indiana, be 

and is herebv incorporated as a town, under the laws of the State of Indiana, 
bv the corporate name of "The Town of ," to wit: [Describe tli3 terri- 
tory.] 

[1S57, p. 84. Approved and in force February 19, 1857.] 

Sec. 3302. Districts. lo. Such inspectors, when they shall 
have returned the statement as aforesaid, shall next proceed to 
divide said town into not less than three nor more than seven dis- 
tricts, having due regard to the equitable apportionment of popu- 
lation among the same and the conveniency and contiguity of such 
district. 

This division should be in writing, signed by the inspectors, and entered in the 
records of the town board when organized. No notice of this districting seems 
to be required' but publicity should be given to it, possibly by posting' up copies 
of the order. 

Division of Town into Districts. 

We, A. B., CD. and E. F., inspectors at the election held in the town of 

, and State of Indiana, on the day of , 18 — , for the purpose 

of determining whether said town should be incorporated, hereby divide said 
town into three districts for the purpose of electing trustees thereof, as follows, 
to wit: {Describe each district by mctcs and bou?ids a?id member.] 

A. B., 
C. D., 
E. F., 

Election Inspectors. 

Sec. 8303. E-e-districting'. 2. Any town heretofore incorpo- 
rated under the act approved as aforesaid, may at any time ten 
days before the annual election, re-district the town according to 
the preceding section, for the purpose of electing officers for said 
town. 

[i R. S. 1852, p. 482. Approved June 11, 1852, and in force May 6, 1853.] 

Sec. 3304. IJotice of corporation election, ii. They shall also 
give ten days' notice by publication in a newspaper, if one be 
printed within such town, or, if there be no newspaper, then by 

27 



§§ 3305—3305^] TOWNS. [418 

posting such notices in five public places therein, of an election to 
be held in such town, for the purpose of electing officers thereof, 
naming the place therein and the day upon which the same shall 
be had; but such day named shall be within twenty days from the 
posting of such notices. Every subsequent notice of a corpora- 
tion election shall be given, in like manner, by the clerk of said 
town. 

1. A town can not be deemed incorporated until its officers and board of 
trustees have been elected, and a president thereof designated, 38 Ind. 41. 

2. The fact that the town trustees were dulj elected and qualified can not 
be questioned collaterally, 29 Ind. iiS. 

3. See notes to § 3037. 

Election Notice. 

Notice is hereby given to the electors of the town of , of the 

State of Indiana, that the first corporate election of said town will be held 

therein between the hours of 8 a. m. and 6 p. m. on the • day of — , 

18 — , for the purpose of electing two trustees for each of the three wards, a town 
marshal, a town clerk, and a town treasurer. A poll will be opened at Thomp- 
son's blacksmith shop, situate at the northeast corner of Huron and Plum 
streets. 

A. B., 
CD., 
E. F., 

Election Inspectors. 

Sec. 3305. Annual election. 12. An election for officers of said 
town, after the first election, shall be held annually on the first 
Monday in May of each year; and at every such election the pre- 
ceding board of trustees, or any three of them, shall act as the 
inspectors thereof. 

1. By an act of 18S1 (p. 58), which took effect March 7, 1881, the election 
of all town officers, all acts, official orders, allowances, and assessments for taxes 
since 1877 were legalized. All ordinances and proceedings of towns since 1877 
are to be received as competent evidence in all courts. 

2. The old trustees formerly acted as inspectors of election, 49 Ind. 62 ; but 
now they appoint inspectors and judges for each precinct, § 3224. 

[1SS3, p. 29. Approved and in force February 26, 1883.] 

Sec. 3305^. Voting place, i. In town elections there shall be 
but one place of voting, which shall be centrally located in the 
town and designated in the notice of such election given by the 
town clerk: Provided, That the trustee of any town may, if public 
convenience and public good require, establish by ordinance a pre- 
cinct in each ward of such town. 

Sec. 3305/^. Laws repealed. 2. All laws and parts of laws com- 
ing in conflict with any of the provisions of this act, be, and the 
same are hereby repealed. [El. Sup. §§ 831, 832.] 

1. See § 3308, note i. 

2. It is now made the duty of town trustees, by the election law of 1889, to 
divide the town into precincts containing not over two hundred and fifty voters 
each, and to locate a voting place in each precinct. This section is, therefore, 



419] ELECTIONS. [§§ 3306—3309 

modified bv that act. But this statement does not apply to the first corporate 
election held bj the election inspectors. In such an instance there is only one 
polling place. This arises from necessity; for there is no one authorized to 
appoint election inspectors and judges for precincts. 

[i R. S. 1S52, p. 4S2. Approved June 11, 1852, and in force May 6, 1S53.] 

Sec. 3306. Polls — Opening and closing. 13. At all elections 
in said town, the polls shall be open at nine o'clock in the fore- 
noon, and shall not be finally closed until four o'clock in the after- 
noon of said day. 

The time of opening the polls is changed from S a. m. to 6 p. m. by the election 
law of 1SS9. See § 469S. 

[1S81 S., p. 703. Approved and in force April 14, 1881.] 

Sec. 3307. Inspectors' duties. 14. Such inspectors shall preside 
at such first election, and be inspectors thereof; and, in the receiv- 
ing and canvassing of votes, shall be governed by the laws then 
existing, so far as they are applicable for the election of township 
officers : Provided, Jiowever^ In case of absence of any of the in- 
spectors from the place of holding such election at nine o'clock in 
the forenoon, the qualified voters of the town present shall proceed 
to appoint such inspector, or inspectors, whose duties shall be the 
same as if they had been presiding at the election held for the pur- 
pose of incorporation. 

By the election law of 1889 the inspector or judge must be present by 8 a. m. 
That law controls town elections so far as applicable, § 4698. 

[1873, P- 2iS' Approved and in force March 10, 1873.] 

Sec. 3308. Officers to be elected. 15. There shall be elected, at 
the first and at every subsequent election, one trustee from each 
district in said town, and also a clerk and treasurer, who shall 
respectively hold their offices until the first Monday in May next 
following, or until their successors are elected and qualified : Pro- 
vided, That nothing herein contained shall prevent the respective 
offices of clerk and treasurer from being held by one and the 
same person. 

1. A trustee must be elected, it was formerly held, for each district of a town, 
but by the voters of the whole town, 49lnd.62; but this rule has been modified 
by the act of 1881, § 331 1 ; and while there is now two trustees for each district 
or ward, they need not be residents of the ward for which they are elected. 

2. The constitution forbids one person to hold two lucrative offices at the 
same time; but it is questionable if that provision applies to a person holding 
the two offices of town clerk and treasurer. See §90, notes. 

3. The tovjn marshal is now elected by the electors of the town, §3325. 

4. Officers of a town can have no interest in a town contract, § 3226a; not 
even the treasurer for grading streets, no Ind. 294; 91 Ind. 477. See ^3313, 
note 2. 

Sec. 3309. Who elected — Tie — Certificate. i6. The persons 
having the greatest number of votes shall be declared elected as 
such trustees, and the persons who received the greatest number 



§ 3309] TOWNS. ■ [420 

of votes, respectively, for clerk and treasurer, as designated by the 
ballot for such office, shall be declared so elected ; and if two or 
more shall have an equal and highest number of votes, and there 
be no choice, the inspectors of such election shall forthwith deter- 
mine, by lot, which shall be deemed elected. And it shall be the 
further duty of such inspectors to make a certified statement, over 
their own signatures, of the persons elected to fill the several 
offices in said town, and to file the same with the clerk of the 
circuit court in the county thereof, within ten days from the day 
of such election. And no act or ordinance of any board of trustees 
chosen at such election shall be valid until the provisions of this 
section are substantially complied with. 

1. An act of 1875 (S., p. 74) legalizes elections prior to March 13, 1875, in 
towns -wherein the certified statement had not been filed with the clerk within 
the prescribed time. This act is retrospective and curative only, 86 Ind. iSo. 

2. When the inspector of a town election does not certifj^ within ten days, 
nor at any time, to the election of the persons elected as officers, the persons 
so elected have no authority. All ordinances passed by the board of trustees 
thus elected are void, 37 Ind. 66 ; but if the certificate is filed, even though ten 
days have elapsed, after the board organizes and transacts business, all its acts 
are thereby legalized, 103 Ind. 112 (overruling 45 Ind. 250; and 46 Ind. 552, 
and modifying 37 Ind. 66). 

3. In an action on a penal ordinance it is not necessary to aver that the 
triTStees which passed it were duly elected, 95 Ind. 70. 

4. If there are a number of precincts, the inspectors of each precinct cer- 
tify to the result in that precinct only, not declaring who is elected. 

5. At all subsequent elections the board of town trustees appoint election 
inspectors for each precinct, §§ 3224, 4689, and clerks of election, § 4690. The 
inspector and judges of each precinct make out a certificate of the result 
in that precinct, § 4712, and deliver it to the inspector or to one of the judges 
designated by the election board. The several persons thus entrusted with 
these election certificates meet at the town hall, or other convenient place, on 
the following day and canvass the result, §§ 4736, 4715, 4716, 4717. They select 
one of their number as chairman and the clerk of the town as clerk, § 4716. 
They make out a certificate of the result, and sign it, declaring who is elected, 
§ 4718. In case of a tie they determine the result by lot, §§ 4719, 4736. This 
certificate is deposited with the clerk of the circuit court, §§ 3309, 4786. The 
election board also makes out a certificate of election, and delivers it to the 
successful candidate, § 4736, which entitles him to theofUceon taking the usual 
oath, § 4737- If there is only one voting place, the inspector and judges make 
their return directly to the clerk of the circuit court. 

6. It is evident that the board of election canvassers, where there is more 
than one precinct, or the election inspector and judges, where there is only one 
precinct, issue to the person elected to an ofiice a certificate of election, §§ 4721, 
4736 ; and that this certificate is not issued by the clerk of the circuit court. 
The provisions of the sections cited govern in this matter. This is also appar- 
ent from the fact that the election board has ten days to file a certificate of 
election with the clerk of the circuit court, §§ 3309; while the newly elected 
ofiicers must qualify as such officers within five davs, § 3313. 

Election Certificate at First Election. 

The undersigned, election inspectors at a special election held on the 

day of 18 — , in the town of , of the State of Indiana, for the 

purpose of electing ofiicers thereof, hereby certify that the following persons 
received the number of ballots set opposite their names for the offices desig- 
nated, viz.: 



42i] 



ELECTIONS. 



[§ 3309 



A. B. for trustee,. . . . . . . » » . . » » * 1 1 • t 1 i » » . 

CD." " 

E. F. " " 

G. H. " " ^ . . 

I. y. " " 

K. L. " " 

M. X. for town clerk, 

O. P. " " " 

Q^ R. for treasurer, > 

S. T. " " 

U. V. for marshal, 

A. B., C. D., and E. F. having each received the highest number of votes 
for town trustees, we declare them duly elected trustees of said town for the 
term of two years each, and G. H., I. J., and K. L. having received the next 
highest number of votes each, we declare them duly elected trustees of said town 
for the term of one year each. 

We also declare that O. P. having received the highest number of votes for 
town clerk, is duly elected to said office for the term of two years ; that Q^ R. 
having received the highest number of votes for town treasurer, is duly elected 
to said office for the term of two years. 

We also declare that U. V. and W. X. having received an equal and the high- 
est number of votes for the office of town marshal, Ave cast lots to determine 
which of the two should be declared elected to that office; and as a result 
thereof we declare W. X. duly elected to said office for the term of two years. 

Dated , 18—. 

R. U., 
S. X., 
L. Y., 

Klection Inspectors. 

Precinct Return. 

The undersigned, A. B., C. D., and E, F., as inspectors of election pre- 
cinct number one, of the town of , of the State of Indiana, hereby certify 

that the result of the election held in said precinct for the election of officers 

of said towm, on the day of , iS—, between the hours of 8 a. m. and 

6 p. m., was as follows, to wit: 



Name. 


Office voted for. 


Number of ballots 
received. 


! 







Dated 



18- 



Return of Board of Election Canvassers for the Town of 



A. 


B. 




C. 


D. 


, 


E. 


F. 




In spec 


tors 



The undersigned, members of the board of canvassers of an election 

held in the town of , of the State of Indiana, on the day of •, 

18 — , for the purpose of electing officers for said town, hereby certify as a result 
of said canvass, which was made by them at the town -hall of said town on the 
day of , iS — , as follows, to wit: 



§33io] 



TOWNS. 



[422 



Name. 


Office voted for 


Number of ballots. 









They therefore certify and declare that A. B., C. D., and E. F., each respect- 
ively having received the highest number of votes, are duly elected trustees of 

said town of , each for the term of two years; that G. H. having received 

the highest number of ballots cast for the office is duly elected clerk of said 

town of ; and that I.J. having received the highest number of ballots 

cast for that office, is duly elected treasurer of said town of 



They also certify that K. L. and M. N. having received an equal and the 
highest number of ballots cast for marshal of said town, they cast lots who 
should be entitled thereto, and as a result thereof, K. L. was and is declared 

entitled to the office of marshal of said town of . 

[Signed.] 



Dated- 



-, iS-. 



IMembers of the Board of Canvassers. 



-, and until his successor is elected and 



Certificate of Election. 

To All Whom it may Concern: 

This is to certify that at a general [c»r, special] election, held in the 

town of , of the State of Indiana, on the day of , 18—, L. X. 

was duly elected to the office of in and for the said town of , 

to serve as such for a term of - 

qualified. 

In witness Avhereof, we have hereunto set our hands and seals this 

day of , 18 — . 

A. B., 
CD., 
E. F., 

Members of the Board of Canvassers, 
Inspectors, -when it is the Ji7-st corporate election. \ 



\or^ jilectit 



Oath of Office. 

State of Ijidiana, Coiuity of ,ss. 

I, , do solemnly swear that I will support the constitution of the 

United States and the constitution of the State of Indiana, and that I will 

faithfully and impartially discharge my duties as of the town of , 

according to law, and to the best of my ability. So help me God. 



Subscribed and sworn to before me, this 
rSeal.l 



day of 



-, 18—. 

L. X., 

Notary Public. 



[i R. S. 1S52, p. 482. Approved June 11, 1852, and in force May 6, 1853.] 

Sec. 3310. Clerk's duty. 17. It shall be the duty of the clerk 
of the proper county to make a record of such certified statement ; 
for which service there shall be paid the same fee as is allowed 
clerks for similar services in other cases. 



423] ELECTIONS. [§3311 

This record consists of entering the certificate at full length in the order 
book of the circuit court and certifying that it is a correct copj. The original 
should be preserved. The clerk of the circuit court can issue the following 
certificate to the person elected, although it is not necessary. It takes the 
place of the inspector's certificate. 



Certificate of Eiection. 

Ojpce of Clerk of County^ 

, Ifidiana, , 18 — . 

To All Whom it May Concer?i: 

This is to certify that in pursuance of the provisions of the general 
law for the incorporation of towns of this State and the acts of the general 
assembly supplemental and amendatory thereto, the board of canvassers of an 

election of the town of , of this State, have filed with me a certificate 

setting forth and declaring that at a election, held in said town, on the 

day of , 18 — , A. B. was duly elected to the oftice of , and 

until his successor is elected and qualified. 

In witness -whereof, I have hereunto set my hand and affixed the seal of the 

circuit court, this day of ■ , 18 — . 

[Seal.] X. Y., 

Clerk of County. 

[For oath, see § 3309.] 

[iSSi S., p. 70S. Approved and in force March 25, 1881.] 

Sec. 3311. Trustees, how elected — Term. i. At the next ensu- 
ing May election to be held for the election of town officers, as 
now provided by law, the town trustees shall be chosen in the 
following manner, to hold their offices for the time herein set forth : 
In a town where there are three trustees to be elected, the person 
receiving the greatest number of votes shall hold his office for two 
years from and after said election, and the two other persons 
receiving the next greatest number of votes each shall hold their 
offices for one year from said election. And where there are four 
trustees to be elected, the two persons receiving the greatest 
number of votes each shall hold their offices for two years, and the 
two persons receiving the next greatest number of votes each shall 
hold their offices for one year. And where there are five trustees 
to be elected, the two persons receiving the greatest number of 
votes each shall hold their offices for two years, and the three 
persons receiving the next greatest number of votes each shall 
hold their offices for one year. And where there are six trustees 
to be elected, the three persons receiving the greatest number of 
votes shall hold their offices for two years, and the three persons 
receiving the next greatest number of votes shall hold their offices 
for one year. And when there are seven trustees to be elected, 
the three persons receiving the greatest number of votes shall 
hold their offices for two years, and the ft)ur persons receiving the 
next greatest number of votes shall hold their offices for one year. 
A7id it is further p?^ovided, That at the May elections for the election 
of town officers, succeeding the May election of one thousand 
eight hundred and eighty-one, the town trustees of the districts 



§§3312,3313] TOWNS. [424 

where a vacancy will occur, by reason of the expiration of the 
term, shall be elected for the term of two years each. In all cases 
where two or more persons receive an equal num.ber of votes, and 
there be no choice, the inspector shall determine, as is now pro- 
vided by law, as to who is elected. 

1. The number of Avardj; new determines the number of trustees only ; but 
thev are elected at large, and may all be elected from one ward alone. 

2. There is no such a body as a board of councilmen under the above section. 
76 Ind. 249. 

[i R. S. 1852, p. 4S2. Approved June 11, 1S52, and in force May 6, 1853.] 

Sec. 3312. Vacancies. 18. A vacancy occurring in the board of 
trustees, or in any corporation office, shall be filled by appoint- 
ment, at a special meeting of the trustees called for that purpose ; 
but such appointment shall be made from the district, if a trustee 
[be appointed], in which the vacancy has occurred, and shall, 'in 
no case, extend beyond the annual election provided for in this 
act. 

So far as the appointment must be made from a particular district, this sec- 
tion has been modified by § 331 1, notp. See § 3308, note 2. 

Order of Appointment. 

Whereas, a racancy in the office of trustee ot this town exists by reason 
of the resignation \or^ death, cr, abandonment thereof] of [isr, by] A. B., a duly 
elected trustee of this town; therefore 

C. D. is appointed as a trustee for the vmexpired term of said office. 

Certificate of Appointment. 

This is to certify that at a special meeting duly called, of the board of 

trustees of the town of , county of , and State lof Indiana, that C. 

D. was duly elected trustee of said town, to fill the vacancy caused by the 

resignation [or, death, or, abandonment] of A. B., which term will expire , 

18—. 

In testimony whereof, I have hereunto set mv hand and the seal of said town 

this day of , iS — . 

[Town Seal.] R. U., 

Clerk of the Town of . 

Sec. 3313. President — Oath. 19. The board of trustees, chosen 
as aforesaid, shall elect a president from their own body ; and such 
president, trustees, and all other officers elect, shall, within five 
days after such election, take and subscribe, before some person 
authorized to administer the same, the usual oath or affirmation 
for the faithful performance of the duties of their respective offices. 

1. For oath, see certificate of election, under § 3310. 

2. A trustee can make no contract with the town. Such a contract is abso- 
lutely void, 45 Ind. 250 ; but lie may purchase bonds of the town or become 
the assignee of a contract with the town, though he Avill not be permitted to 
make a profit out of the latter, 77 Ind. 307. 

3. The board of trustees of the civil town may elect one of their number a 
member of the board of trustees of the school town, 60 Ind. 288. See § 3308, 
note 4. 



425] ORDER OF INCORPORATION. [§§3314 33 16 

4. Under the general law for the incorporation of a town there is no such 
a bodj as the board of councilman, 76 Ind. 244. 

5. No provision, as in the case of cities, has been made specifying when 
the board of trustees shall meet, nor ibr the calling of special meetings, nor 
when the first meeting shall be. If all the trustees, or a majority of them, as- 
semble after they have received their certificates of election and taken the proper 
oath, they may "proceed to transact the busmess of the town, if there is no or- 
dinance specifying when the first meeting shall be held. The time and place 
of meetings may be regulated by ordinance, as well as how special meetings may 
be called. At special meetings any business of the town may be transacted, 
unless some ordinance of the town restricts the transaction of business thereat. 



Sec. 3314. Corporate name. 20. The president and trustees 
of such town, and their successors in office, shall constitute a body 

politic and corporate, by the name of the "Town of , " and 

shall be capable, in law, to prosecute and defend suits to which 
they are a party. 

1. The name of the town as a school corporation is "The School Town of 
." § 4438, notes. 

2. Courts t3.\ie Judicial notice of the corporate name of a town, 

[1859, p. 206. Approved and in force March 4, 1859.] 

Sec. 3315. Order of incorporation, when conclusive, i. In all 

cases where the inhabitants of any town in this State have taken 
steps to incorporate the same under ''An act for the incorporation 
of towns, defining their powers, providing for the election of the 
officers thereof, and declaring their duties," approved June ii, 
1852 ; and where the board of county commissioners of the county 
in which such town is situated have, in pursuance of such pro- 
ceedings, made a final order declaring such town incorporated by 
the name designated, in pursuance of section nine of the above- 
recited act [§ 3301], such order shall be conclusive, and such town 
shall be deemed and taken to be an incorporated town : Provided, 
That nothing in this act shall be so construed as to affect any case 
where an appeal has been taken from such order, or where an ap- 
peal may hereafter be taken from such order within the time pre- 
scribed by law. 

See § 3301, 7tote 2, 

[i R. S. 1852, p. 482. Approved June 11, 1852, and in force May 6, 1853.] 

Sec. 3316. How old town may incorporate. 56. Any town 
heretofore incorporated may, by a resolution of the board of 
trustees or other municipal board thereof, entered upon the record- 
book of the corporation, become incorporated under this act; but 
the same shall be deemed a surrender of all the rights and fran- 
chises acquired under any former act of incorporation or acts 
amendatory thereto. A copy of such resolution shall be filed with 
the clerk of the circuit court of the proper county, and entered by 
him of record. Trustees and other officers of such incorporated town 



§1 3317. 33 iS] TOWNS. [426 

by whatever name designated, performing duties of a like nature to 
those required of officers created by this act, shall continue to be 
the officers of such town, by the name as specified in this act, until 
superseded by the annual election. 

See notes to § 3039. This is the only statute authorizing an incorporated 
town, vmder a special statute, to become incorporated under the general law, 
61 Ind. 97. 

See § 3031, 7iote 5. After surrender of the special charter a town is governed 
by any general law applicable to towns, whether then in force or thereafter 
enacted, 82 111. 472. 

Resoiution. 

Resolved, by the board of trustees of the town of , that the special 

charter, and the acts amendatory and supplemental thereto, of said town be 
and the same is hereby surrendered, and all the rights and franchises acquired 
under said charter and amendatory acts are hereby surrendered and released ; 
and the general law of this State for the incorporation of towns, ito wit: "An act 
for the incorporation of towns, defining their powers, providing for the election 
of the officers thereof, and declaring their duties," approved June 11, 1852, and 
the acts amendatory and supplementary thereto, be and the same is hereby 
accepted as the law for the future control and government of said town. 

Sec. 3317. Debts not affected. 58. No debt or liability due to or 
from any incorporated town shall be impaired by reason of such 
town being brought within the provisions of this act, and becoming 
incorporated under it. 

1. See notes to §§ 3040 and 3041. 

2. The old ordinances continue in force, § 3041, note. 

Sec. 3318. Dissolution of town — Proceedings. 53. When an appli- 
cation, signed by one-third of the legal voters of any incorporated 
town, shall be presented to the board of trustees, in writing, ask- 
ing for a dissolution of the corporation, setting forth the reasons 
therefor, it shall be competent for said board, if they deem the 
reasons good, to call a meeting of the voters of said town, by giving 
ten days' notice thereof, as provided in this act, to determine 
whether such corporation shall be dissolved. The board of trustees 
shall preside at such meeting, and a poll shall be opened, as at 
other corporation elections, and the voters shall vote by ballot, 
''Yes" or "No." If a majority of all the votes given shall have 
thereon the word *' Yes," and such votes shall have been given by 
two-fifths of all the legal voters in such town, a statement of the 
vote, signed by the president and attested by the clerk, shall be 
filed in the clerk's office of the county, and such town shall, at the 
expiration of six months from the time of holding such meeting, 
cease to be a corporation, and the property belonging to such cor- 
poration, after the payment of its debts and liabilities, shall be dis- 
posed of in such manner as a majority of the voters of such town, 
at any special meeting thereof, may direct. 

So far as applicable, the election law of 1889 (§ 47io»z) must be followed. 
The board of trustees no longer presides, election inspectors and judges being 
appointed for that purpose, § 3309, notes 4 and c^. In no other way than pointed 



42/] DISSOLUTION. [§33i8 

out in this statute can a corporation be dissolved, 26 Ind.308. No provision has 
been made for the custody of the books of a dissolved town. Perhaps the clerk 
of the circuit court may take charge of them. 

Petition. 

To the Board of Trustees of the Totvn of ; 

The undersigned, one-third of the legal voters of said incorporated town, 
prav that the said town be dissolved and its rights as a corporation be surren- 
dered, for the following reasons, viz.: \State the reasons in general terms.] And 
they pray that your honorable board call a meeting of the voters of said town to 
determine whether said corporation shall be dissolved. 

[Signed.] 

Journal Entry. 

Whereas, A. B. and others, constituting at least one-third of the legal 

voters of the town of , of the State of Indiana, have presented a written 

petition to this board praying that said corporation be dissolved; therefore 

It is ordered by the board of trustees of the town of that a special 

meeting of the legal voters of said town be held at the usual voting place on 
the day of , 18 — , for the purpose of determining whether such cor- 
poration shall be dissolved, ten days' notice of said meeting being first given by 
the town clerk. 

Election Notice. 

Notice is hereby given to the legal voters of the town of , of the 

State of Indiana, that a meeting of the legal voters of said town on the 

day of , 18 — , between the hours of 8 a, m. and 6 p. m., will be held for the 

purpose of determining whether said corporate town be dissolved, as A. B. and 
one-third of the legal voters thereof have petitioned the board of trustees of 
said town. Said meeting will be held at the Luke's carpenter shop, situate on 
the northeast corner of Warren and Link streets, where a poll will be opened for 
the purpose of receiving ballots. 

By order of the board of trustees of the town of . 

L. X., 

Town Clerk. 

Election Board's Certificate. 

The undersigned, A. B. as inspector, and C. D. and E. F. as judges, of a 

special election of the legal voters thereof, held in the town, of , of the 

State of Indiana, on the day of , 18 — , pursuant to an order of the 

board of trustees of said town, for the purpose of determining whether said town 
or corporation shall be dissolved, hereb}^ certify that the result of said election 
was as follows, to wit: 

Number of ballots cast with the word " Yes" thereon 

Number of ballots cast with the word "No" thereon 

Majority in favor of [or, against] the dissolution of said 

corporation , ~ 

Dated , 18—. 

A.B., 
Inspector. 

C. D., 
E. F., 

Judges. 

Certificate of Result. 

The undersigned, L. X., president of the board of trustees of the town 

of , of the State of Indiana, hereby certifies that on the day of 

, 18 — , there was presented to the board of trustees of said town a petition 



§§ 3319— 3321] 



TOWNS. 



[428 



signed by at least one-third of the legal voters of said town, praying that said 
town be dissolved; that in pursuance of the prayer of said petition the said 
board of trustees ordered that a special meeting of the legal voters of said town, 
of which the clerk was required to give due notice, be held in said town on 

the day of , 18 — , between the hours of 8 a. m. and 6 p, m., for the 

purpose of determining whether said corporation should be dissolved ; that in 
pursuance of said order, notice was given and a meeting held at the time and 
place designated, and the result of said election, as appears from the return of 
the election inspector and judges [or, board of canvassers, ivheji there is more 
tJnm 0716 frecinzt, sec note 4 § 3309], filed with the clerk of said town, was as 
follows, to wit: 

Number of ballots in favor of such proposed dissolution .... 

Number of ballots against such proposed dissolution 



Majority in favor of such proposed dissolution 



I also certify that those voting in favor of said dissolution were at least two- 
fifths of all the legal voters of said town. 

In testimony whereof, I have hereunto set my hand and caused the seal of 

said town to be affixed this day of , 18 — . 

Attest: L. X., 

[Seal.] U. L., President of the Board of Trustees 
Clerk of the Town of . of the Town of . 

Sec. 3319. Rights and contracts not affected. 54. No such dis- 
solution shall affect the rights of any person in any contract or 
agreement to which such corporation is a party. 

On the eftect of a dissolution, see §3130. 



ARTICLE 2— GOVERNMENT AND POWERS. 



SEC. 
3320. 
3321. 
3322. 
3323- 
3324- 
3325- 
3326. 
3327- 
3328. 
3329- 
3330. 
3331- 

3332. 

3333- 
3334- 



SEC. 

Official bonds. 3335- 

Books, etc., to successor. 333^. 

Duties of treasurer. 3337- 

Publication of treasurer's settlement. 3338. 

Duties of clerk. 3339- 

Marshal. 334°. 

Marshal. 3341. 

Duties of marshal. 3342. 

Duties of trustees as to streets. 3343- 

Fire-wardens. 3344- 

Pay of officers. 3345- 

Town suing — Proof. 3346. 

Special meeting: of voters. 3347- 

Powers of trustees. 3347«- 
Shade-trees. 



Fire limits. 

Lighting streets." 

Tax for lighting. 

Public grounds and wharves. 

Money, how appropriated. 

Claims. 

Money, ho\v drawn. 

Loans. 

Bonds. 

Proceeds paid treasurer. 

Tax to pay interest. 

Fines. 

Suits — Imprisonment. 

Justice of the peace for to^vn. 



[i R. S. 1852, p. 482. Approved June 11, 1S52, and in force May 6, 1853.] 

Sec. 3320. Official bonds. 28. The clerk, treasurer, and marshal 
shall, within ten days from their election or appointment, each 
and severally give bonds, payable to the State of Indiana, with 
freehold sureties, to such an amount as the board of trustees 
shall direct; but the bonds of the treasurer and m.arshal shall, 
respectively, be for double the amount of the estimated tax dupli- 
cate for the current year. 

For general form of bond, see § 3095. 

Sec. 3321. Books, etc., to successor. 29. All books, vouchers, 
moneys, or other property belonging to the corporation, and in 



429] treasurer's duties. [§ 3322 

charge or possession of any officer of the same, shall be delivered 
to his successor when qualified. 

For demand for possession of books and office, see § 3095. 

Sec. 3322. Duties of treasurer. 39. The treasurer of every incor- 
porated town shall so keep his accounts as to show when and from 
what sources all moneys paid him have been derived, and to 
whom and when such moneys, or any part thereof, have been paid. 
The treasurer shall grant all licenses authorized by this act, upon the 
presentation of the receipt of the marshal that the money therefor 
has been paid to said marshal. His books, accounts, and vouchers 
shall, at all times, be subject to the examination of the board of 
trustees ; and it is hereby made their duty to examine the same 
at a regular meeting of such board, on some day between the first 
and last Monday of April in each year, and to have settlement 
with the said treasurer. 

1. For license^ see § 3068, Effect of settlement, § 3079, note 2. 

2. The treasurer is liable for all the town's moneys coming to his hands ; and 
cannot set up that the town obtained them illegallj. He and his bondsmen are 
liable for all moneys in his possession at the time the bond is given, and for all 
received thereafter, 85 Ind. 10; 94 Ind, 159. Nor can the treasurer refuse to 
pay over the town's moneys on the ground that his election was void or illegal, 
86'lnd. 180. The treasurer may use the town funds as he sees fit, only being 
required to pay them over on proper demand, 94 Ind. 159. See § 3083, wo/t,' 2. 
When the county treasurer collects the town tax he pays it over to the town 
treasurer, § 3225«. 

3. In making a settlement with the trustees the treasurer should make a 
report of his receipts and disbursements, similar to the iforms used vmder 
§ 3083, changing it to suit the facts and circumstances. If desired, these reports 
can also be entered in the treasurer's books. The reports should be in dupli- 
cate, one filed with the town clerk and the other retained; and if it is approved, 
the board should enter a memorandum in their journal as follows, to wit: 



Settlement with Treasurer. 

The board having this day examined the books, accounts and vouchers 
of the town treasurer, and the report of his receipts and expenditures for the 
year ending April first of the present year, which report was filed with the clerk 

of this^town on the day of , 18 — , and having found them in all 

respects correct.^iaid report is hereby approved, and a settlement is hereby made 
with said treasurer in accordance with said report. The town clerk is ordered 
to indorse upon said report the approval of this board, as well as upon the dupli- 
cate copy retained by him; and to cause to be published in the Wcchly Argus 
an exhibit of such receipts and expenditures. 



Approval. 

The within report was approved by the board of trustees of the town 
of , at a regular meeting held on the day of , iS — . 

Town Clerk. 



§§ 3323, 33241 



TOWNS, 



[430 



Receipt. 



Ind., 



No. 

-iS- 



Received of A. B. 



— dollars for a license to peddle 

days from this date within the town of , in accordance with the provisions 

of the ordinances of said town. 

U.Z., 

Town Marshal. 

Sec, 3323. Publication of treasurer's settlement. 40. It shall 
be the duty of the board of trustees, immediately after the annual 
settlement with the treasurer of said corporation, to publish in a 
newspaper, if one be printed therein, or, if there be no newspaper, 
then by posting in three or more public places, an exhibit of the 
receipts and expenditures, specifying the sources of such receipts, 
what appropriations were made, for what objects, and the specific 
amount of each. 



Receipts and Expenditures of the Town of . 

We hereby certify that the following is a true exhibit of the receipts 

and expenditures of the town of , of the State of Indiana, for the year 

beginning April i, i8 — , and ending April i, i8 — , viz.: 



RECEIPTS. 



Source of Receipts. 




Amount. 






Dols. 


Cents. 





EXPENDITURES. 



On what account paid out. 


Date. 


Amount. 


By what authority paid. 






Dols. 


Cents. 





The Board of Trustees of the Town of 



By U. Z., 

Town Clerk. 



Sec. 3324. Duties of clerk. 41, The clerk of such town shall 
have the custody of the records, books, and papers of the board 
of trustees, and shall attend all meetings and record the proceed- 
ings of said board, and shall perform all other duties appertaining 
to his office and required of him by the by-laws. 

Power and duty of clerk over records, see § 3068, notes. 



43 1] MARSHAL. [§§ 3325—3328 

[1879, p. 15. Approved and in force March 10, 1879.] 

Sec. 3325. Marshal. 2. The town marshal shall be elected by 
the'qualified voters, as other officers are elected under the present 
election laws of this State, in all incorporated towns of this State ; 
and he shall hold his office for one year, or until his successor is 
elected and qualified. 

Sec. 3326. Marshal, 4. Whenever any vacancy shall occur in 
the office of town marshal, by death, resignation, or removal, the 
board of trustees of such incorporated town shall have power to 
appoint a successor, who shall hold his office until his successor is 
elected and qualified. 

[1S89, p. 40. Approved and in force February 25, 1889.] 

Sec. 3327. Powers of marshal. 42. The marshal of such town 
shall possess the powers and be subject to the liabilities possessed 
and conferred by law, upon constables, in executing the orders of 
the trustees or enforcing the by-laws and ordinances of said town. 
Such town marshal shall have, in addition to powers they now 
possess, the jurisdiction and powers of constables in their respective 
counties, and shall be entitled to the same fees as constables while 
acting as constables. [El. Sup. § 828.] 

The marshal of a town vi\2iy arrest offenders on view. An ordinance against 
fast driving jS valid, 48 Ind. 19. He may detain him if the arrest is at night 
until the usual hours of business the next morning, or over Sunday vmtil 
Monday morning; or if the prisoner is so intoxicated as not to be fit for trial, 
until he is sober, 47 Ind. 289, 

2. The powers of a town and city marshal to make arrests do not differ. 
See §3076, notes. He is not authorized to appoint a deputy. Pursuit oi ficgitives. 
§§ 3076a to 3077c. 

3. The board of trustees may bind the town by o.ray^Xoyvao.nio'i counsel to defend 
the marshal in a civil action brought against him for false imprisonment occa- 
sioned in making an arrest for a violation of a town ordinance, 103 Ind. 196. But 
the town is not liable for an unlawful arrest made by the marshal, 27 N. E. Rep. 
301; 88 Ind 330. 

4. When marshal is road supervisor, §3367. When he works prisoners on 
the streets, § 3347- May serve as street commissioner, § 3333, clause 10, note. 

5. The marshal is entitled to exactly the same fees that a constable is entitled 
to for the same services. Y or fees ^ see ^Z^'J^a; for mileage^ § 3077^. 

Sec. 3328. Powers of trustees as to streets. 43. The board of 
trustees shall superintend the grading, paving, and improving of 
streets, and the building and repairing of sidewalks. 

T The constant and exclusive use, by a railroad company, of part of a street 
for a right of way, can not ripen into absolute ownership, 47 Ind. 25. See 
6 3161, note 15. 

2. The board of trustees must keep the streets and alleys in a safe condition 
for travel ; and if they do not, and thereby an injury is caused, the town will be 
liable for its negligence., even though the unsafe condition was caused by a third 
person, the town having notice of such defect, or it had existed long enough to 
give it constructive notice thereof, 66 Ind. 136; 57 Ind. 192. They must keep the 
bridges in repair, 57 Ind, 192; 55 Ind. 21^0. Dutv to repair, see ^ 3161, notes 
16 to 18. 



§§3329—3333] TOWNS. [432 

3. They have exclusive control over the street and public highways within 
the town, to the exclusion of the township supervisor, 65 Ind 404; see 76 Ind. 
244. They have plenary power to grade and improve streets and sidewalks, 6 Ind. 
237; §3363- 

4. They can not maintain an action of trespass quare clausum f regit for an 
injury to a highway, i B. 88; but may recover of any one causing the injury to 
the street or to a bridge the cost of refairing'\i\ or whatever damages it has had 
to pay by reason of such injury, 57 Ind. 192; 55 Ind. 250. 

5. They can not grant the exclusive right to a company to lay and maintain 
gas-pipes in the street, 114 Ind. 332. 

6. That streets and alleys are highvjays^sQe § 3161, note ^\ imautJiorized use 
of street, § t^i6i^ notes 6 to 10; dedicatioji^ § 3161, notes 11 to 14; bridges, hy 
whom built, § 2,161a. 

[i R. S. 1852, p. 482. Approved June 11, 1852, and in force May 6, 1853.] 
Sec. 3329. Fire-wardens. 44. The fire-wardens shall attend all 
fires, give their personal superintendence to extinguishing the same, 
do all other acts required by the by-laws, and obey all orders given 
by the board of trustees in relation to the fire department. Trus- 
tees shall, by virtue of their office, be fire-wardens. 

See § 3198, note. 

Sec. 3330. Pay of officers. 45, The trustees, clerk, treasurer, 
and marshal shall, respectively, receive for their services such com- 
pensation as the board of trustees, m their by-laws, may direct; 
and said board shall cause to be paid to all other officers of such 
town, for their services, a just and reasonable compensation. 

See § 3105, notes, and for salarj"- ordinance. The town marshal is not en- 
titled to fees in town prosecutions; his salary being all the compensation he is 
entitled to. See 69 Ind. 244. 

Sec. 3331. Town suing^ — Proof. 55. Whenever any suit shall 
be instituted by an incorporated town, it shall not be required to 
show its compliance with the provisions of this act as to its organ- 
ization, or as to publication of by-laws or ordinances, unless the 
same is controverted by affidavit. 

The organization of the town can not be even controverted by affidavit under 
the present laws. See §§ 3315 and 3301, notes. Only the publication of an ordi- 
nance can be controverted; and that must be done by a sworn answer in the 
shape of an affidavit. For comment on a similar -orovision and a form of affida- 
vit, see notes to § 3064. 

Sec. 3332. Special meeting of voters. 21. Special meetings of 
the qualified voters may be called by the clerk, by order of the 
trustees of said town, by giving ten days' notice thereof in a news- 
paper, if any be printed in such town ; otherwise, by posting up 
such notices in five public places therein ; and such notice shall state 
the objects for which such meeting is called. 

For a form of order and notice (which will require some modifications, easily 
made), see § 3318. No petition for a special meeting is necessary. 

[1885, p. 171. Approved and in force April 10, 18S5.] 

Sec. 3333. Powers of trustees. 22. The board of trustees shall 
have the following powers : 



433] POWER OF TRUSTEES. [g 3333 

1. That the board of trustees can not delegate its fowers^ see § 3096, 7iote 3; 
extent oi jurisdiction^ § 3106, note i ; change or repeal oi statute, \ 3106, note 2; 
limit ofpozi'crs, § 3106, note 3 ; liability for non-exercise of powers, § 3106, note 
4; liahihity for exercise of ministerial powers, § 3106, note 5 ; consequential in- 
juries, § 3106, ;zo/e 6; throwing a stream of ivciter on land, § 3106, note 7; ^z^r- 
y«t-e xvater, § 3106, wc/f' 8; freshets^ § 3106, tiote <)\ outlets for water, § 3106, ?zo/g 
10; mviSt nse reasonable diligc?ice, ^ ^106, 7iote 11; selection of plan of public 
works, § 3106, note 12; incidental foxver^ ^ "^106^ note 13; failure to enforce 
ordinance, § 3106, note 14; ^or/^ of officers, § 3106, «o/^ 15; contracts, § 3106, 
woz'^' 17; ratifying contract, § 3106, ;2(?/^ 18; comfromise, § 3106, ?zo/e 19; arbitra- 
tion^ § 3106, ?Z(9/c 20; estoppel, § 3106, wo/^ 21; borrowing m07tey, § ^106, ?tote 
22; powers under general welfare clause, § 3155 notes; encuinbering streets, 
§ 3106, clause 1^, notes. Drains or ditches may now be run through a town under 
section two of the drainage law of 1885 (Acts 1885, p. 129), as amended in 1889 
(Acts 1889, p. 285, EL Sup. § 1198). If possible, such ditches must be confined to 
the streets. Property in the town may be assessed with benefits. Under an act 
1891 a city or town may now be assessed with benefits when the ditch constructed 
exceeds five miles in length (Acts 1891, p. 455). 

2. Ordinances are essential to put the powers conferred by this section into 
force, 60 Ind. 371; 38 Ind. 49; for they are not self-executi?tg. Id. 

Sec. 3333. Seal. First, To have a common seal, and to alter 
the same. 

See § 3102, notes. 

Second. To purchase, hold, and convey any estate, real or per- 
sonal, for the use of the corporation, so far as such purchase may 
be necessary to carry out the objects contemplated by this, act. 

See § 3106, clause 45, notes. The trustees can not borrow money to purchase 
real estate, or purchase it on credit, unless upon a petition of five-eighths of the 
citizen tax-payers of the town. Such a purchase is void and may be enjoined. 
But a purchase for cash is not. 45 Ind. 250; 60 Ind. 504; § 3342. 

Sec. 3333. Fire companies — Ashes — Fires — Fireworks — Water- 
works. Third. To organize fire companies, and hook and ladder 
companies ; to regulate their government and the times and manner 
of their exercise ; to provide all necessary apparatus for the ex- 
tinguishment of fires; to make owners of buildings provide ladders 
and fire-buckets (v/hich are hereby declared to be appurtenances 
to the real estate, and exempt from execution, seizure, or sale); 
and if the owner shall refuse to procure suitable ladders or fire- 
buckets, after reasonable notice, the trustees may procure and 
deliver the same to him, and, in default of payment therefor, may 
recover of said owner the value of such ladder or fire-buckets, by 
suit before any justice of the peace in the proper township, and 
costs accrued thereby. To regulate the storage of gunpowder and 
other dangerous material. To direct the construction of a place 
of safe deposit of ashes ; and they may, under any order by them 
entered upon the proper book of the board, visit, or appoint one 
or more fire-wardens to Visit, and examine, at all reasonable hours, 
dwelling-houses, lot[s], yards, inclosures, and buildings of every 
description ; discover if any of them are in a dangerous condition, 
and provide proper remedies for such danger. To regulate the 
28 



§ 3333] TOWNS. [434 

manner of putting up stove-pipe[s]. To prevent out-firc[s] and 
the use of fireworks, and the discharge of firearms within the 
Hmits of said corporation, or such parts thereof as they may think 
proper. To compel the inhabitants of such town to aid in the 
extinguishment of fires and prevent its communication to other 
buildings, under such penalties as are in this act provided. To 
construct and preserve reservoirs, wells, pumps, and other water- 
works, and to regulate the use thereof. And, generally, to estab- 
lish other measures of prudence for the prevention or extinguish- 
ment of fires, as they shall deem proper. 

1. The town may purchase 2l fire engi'iieiox q.2^^\v\ oron credit when a petition 
is filed, 60 Ind. 504; § 3342. It has inherent power to make the purchase, 106 
Ind. 129. 

2. Town has inherent power to prevent danger from fire, 85 Ind. 276, S. C. 
44 Am. R. 13 ; or to enact ordinances for the protection of the property of its 
citizens, 100 Ind. 575, S. C. 50 Am. R, 830; 106 Ind. 129. 

3. Fire zvorks and arms, §3106, clause 3, 7iote,2ind §3333, clause 6; gun;pOTvder, 
§ 3106, clause 3, note 2; tvater-vjorhs, §3106, clause 26, notes, and §§ 3265 to 3285. 

4. The town may prescribe j^/'e limits, and prevent the erection of wooden 
buildings therein. It may remote buildings dangerous to the community, 100 
Ind. 575; S. C. 50 Am. R. 830-, or prevent the keeping of large quantities of 
inflammable material Tas straw), within the thickly populated part of the town, 
85 Ind. 276- S. C. 44 Am. R. 13. 

Sec. 3333. Nuisance. Fourth. To declare what shall constitute 
a nuisance, and to prevent, abate, and remove the same ; and to 
take such other measures for the preservation of the public health 
as they shall deem necessary. 

See § 3106, clause 4, notes; § 3106, clause 11, notes; § 3106, clause 22, v.otc. 

Sec. 3333. Animals. FiftJi. To regulate and prohibit the run- 
ning at large of cattle, horses, swine, fowls, and other animals ; and 
to provide for the impounding, keeping, sale and redemption of the 
same when found in violation of the ordinance in such case pro- 
vided. 

See § 3106, clause 21, notes. Before the amendment of this statute in 1885, 
the town had no power to impound and sell animals, 80 Ind. 487. 

Sec. 3333. Gaming, houses of ill-fame — Firearms, etc. Sixth. To 
restrain and prohibit gambling and other disorderly conduct; to 
suppress and prohibit the keeping of houses of ill-fame ; and to 
authorize the seizure and destruction of gambling apparatus. To 
punish intoxication, common prostitutes and their associates, and 
immoderate driving or riding. To regulate or prohibit the use of 
firearms, fireworks, or other things tending to endanger persons or 
property. To prevent interference with the free use of the streets 
and alleys of the town. And to preserve peace and good order, 
and prevent vice and immorality. 

I. Vice and immorality, § 3106, clause 7, note; gfiming, houses of ill-fame, 
gambling apparatus, § 3106, clause 9, notes, 60 Ind. 457; firearms, § 3333, clause 3 ; 
prostitutes, § 3106, clause 20, notes; driving, § 3106, clause 17, note; encumbering 
streets, § 3106, clause 17, notes; § 3161, note, and § 3191 ; mav prevent drunken- 
ness, 47 Ind. 289. 



435] POWER OF TRUSTEES. [§ 3333 

2. In order to preserve the peace and good order, unless a state law is vio- 
lated, an ordinance is essential, 103 Ind. 196. The town may prohibit driving 
or riding faster than a trot, and inflict fines therefor. Such an ordinance is 
reasonable; and the marshal may arrest any one on view driving in violation of 
such an ordinance, 48 Ind. 19. 

Sec. 3333. Auctions — Licenses. Seventh. To license, regulate, 
or restrain auction establishments, street auctions, and all tables, 
machines, devices, and places for sports or games kept for hire or 
pay, traveling peddlers, public exhibitions, and the sale of spiritu- 
ous, vinous, malt, and other intoxicating liquors within the corpo- 
ration : Pj'ovided, That where such license is granted to sell spiritu- 
ous, vinous, malt, and other intoxicating liquors, a sum not exceed- 
ing the amount required by the statutes of the State for license to 
sell or retail intoxicating liquors, may be required to be paid into 
the treasury of the corporation by the person so licensed, before 
receiving such license. 

1. See § 3106, clause 13, notes. Towns may charge $250 for licenses to sell 
intoxicating liquors, § 3226c/ games., § 3106, clause 14, notes ; exhibitions., § 3106, 
clause 15, notes; peddling, § 3106, clause 23, notes. This clause is constitutional., 
77 Ind. 213. 

2. Formerly a town had no power to require a license of vendors of intoxi- 
cating liquors, 40 Ind. 340, 449 ; 33 Ind. 507, 510 ; 6oInd,327; 61 Ind. 24; 62 Ind. 
21; 74 Ind. 590; and money voluntarily paid for a license then could not be re- 
covered back, 46 Ind. 552; 51 Ind. 264; 55 Ind. 14 (overruling 40 Ind. 340, and 
4^ Ind. 552); 60 Ind. 327; 61 Ind. 445; but if paid conditionally under a contract 
to pay back it may be so recovered, 84 Ind. 31. 

3. A license is not a contract, and may be revoked by the legislature at its 
pleasure, 77 Ind. 213 ; 120 Ind. 476. Both the town and the county may exact a 
license, and both may punish for all sales without them, § 3066^, notes ; 90 
Ind. 258. 

4. A town xn.a.y prohibit the sale of liquor unless a license is first taken out, 
118 Ind. 103. 

5. An ordinance is valid which requires the applicant to Jirst procure a 
county license. A male applicant for a license can not assail an ordinance \i&- 
C2i\x?,e females are not entitled to a like license. The town may prohibit the sale 
of fermented cider, 118 Ind. 114. 

Sec. 3333. Markets. Eighth. To establish and regulate markets 
and build market-houses, and to direct the location of slaughter- 
houses. 

See §3106, clauses 11 and 29, notes. 

Sec. 3333. Grading streets. Ninth. To lay out, open, grade, 
and otherwise improve the streets, alleys, sewers, sidewalks, and 
crossings, and keep them in repair, and to vacate the same. 

See §§ 3357 to 3366; vacation of streets, §§ 3367 to 3373. The marshal mav 
execute the orders of the board of trustees under this clause, but the street 
commissioner is the proper officer, 76 Ind. 244. 

Sec. 3333. Commissioners — Fire-wardens. Te7itJi. To appoint 
street commissioners and fire-wardens, not exceeding three. 

Street commissioner, §3368, should execute the orders of the board with 
respect to streets, 76 Ind. 244. Fire-wardens, §3329. 



§ 3333] TOWNS. [436 

Sec. 3333, Incumbering of sidewalks. Eleventh. To prohibit 
the incumbrance of the sidewalks of said town, and riding or 
driving thereon except to cross the same. 

See § 3328, notes, and § 3 161, notes 6 to 10\ § 3361. 

Sec. 3333. Insurance. Tzvelfth. To insure the pubHc property 
of such town. 

Sec. 3333. Cemeteries. Thirteenth. To purchase, lay out, and 
regulate cemeteries. 

See § 3106, clause 5, notes. The trustees can only buy for cash, unless a 
petition signed by five-eighths of the tax-payers requests them to purchase on 
credit, k ZZ^- '■> 45 ^^^- 250; 60 Ind. 504. 

Sec. 3333. Shade-trees. Fourteenth. To plant trees upon public 
grounds, and along the streets of such town, and provide for their 
culture and preservation ; and to inclose any public square or 
other public grounds within said corporation. 

See §§ 333453229, note. 3229a, 3229^, and 3106, clause 46, iiotcs. 

Sec. 3333. Taxes — Dogs, Fifteenth. To levy and collect annual 
taxes, not exceeding fifty cents on the hundred dollars' valuation 
(and twenty-five cents poll-tax) on all property subject by law to 
taxation; and on each male dog a tax not exceeding one dollar, 
and on each female dog a tax not exceeding two dollars, to be paid 
by the owner thereof. * 

1 . Tax to pay for real estate., 6 3343, and interest thereon, § 3345 ; road tax, § 3356, 
3I56«/ special school tax, §4467 ; local school tuition tax, § 4469, tax to pay school 
debts., § 4471 ; schools generally., 6 3333, clause 19 ; dogs., § 3156, note 14 ; bank stock, 
§3254 to 3260, notes; gas tax, 63337. 

2. When tax is levied, § 3348. 

3. The general state tax law applies to the assessment and collection of 
taxes, § 3263, note; § 3264. 

Sec. 3333. General welfare clause — Publication of ordinances. 

Sixteenth. To make and establish such by-laws, ordinances, and 
regulations, not repugnant to the law[s] of this State, as may be 
necessary to carry into effect the provisions of this act ; and to 
repeal, alter, or amend the same as they shall seem to require. But 
svery by-law, ordinance, or regulation, unless in a case of emer- 
gency, shall be published in a newspaper in such town, if one be 
printed therein, or posted in five public places, at least ten days 
before the same shall take effect. 

1. For discussion of powers under general welfare clause, see §3155, fiotes. 

2. An ordinance fixing the grade of a street must be either published or be 
put in force by an emergency clause; and any contractor grading a street ac- 
cording to the provisions of an ordinance not thus put in force will be liable 
to the abutting lot-owner who is injured by such grading, 108 Ind. 208. 

Sec. 3333. School tax. Seventeenth. Such board of trustees 
shall have power to complete school-houses now in progress of 
erection, and provide for the payment of the same ; to erect or 
provide such school-houses as may be necessary for the use of the 



437] SHADE-TREES— FIRE-LIMITS. [§§ 3333—3335 

schools of the town; to keep them in repair; and to provide fuel 
and other necessaries therefor. 

See §(^4467 to 4471; and §§ 3343 to 3345. The civil town is not liable for a 
school building, but the school town is liable, 59 Ind. 520. The validity of this 
clause is doubtful. 

Sec. 3333. Wharves, Eighteenth. To construct all necessary 
wharves and landings for steamboats and other vessels, where 
such town is situated on the bank of any navigable stream or 
water-course. 

See § 3106, clause 34, notes. 

Sec. 3333. Tax for support of schools. Nmeteenth. The said 
board of trustees shall have power to levy and collect annual taxes, 
not exceeding thirty cents on the hundred dollars' valuation, on all 
property subject by law to taxation, for the support of town schools 
within their said corporation. 

This is a tuition tax. See §§ 4469, 4470. The validity of this clause is 
doubtful. 

[1865, p. 78. Approved March 6, 1865, and in force September 2, 1865.] 

Sec. 3334. Shade-trees, i. The board of trustees of any incor- 
porated town shall have power, with the consent of persons own- 
ing more than one-half of the lots along any street (counting by 
lineal feet of street front), to authorize all persons owning or occu- 
pying such lots to inclose portions of the street in front of their 
lots, and to occupy the same for shade and ornamental purposes, 
but not for buildings or permanent structures, and not to as to re- 
duce the street and sidewalks below the width of sixty feet. 

See § 3106, clause 46, notes; §§ 3229, 3333, clause 14. 

[1867, f). 219. Approved and in force March i, 1867.] 

Sec. 3335. Eire-limits, i. Whenever two-thirds of the owners 
of real estate within the proposed fire-limits, residents within the 
corporate limits of such town, on any street or streets, or desig- 
nated parts of any street or streets, of any incorporated town in 
this State, shall petition the board of trustees of such town for the 
passage of an ordinance establishing fire-limits and preventing the 
erection of wooden buildings on such street or streets, or desig- 
nated parts of street or streets (which petition shall accurately de- 
scribe the proposed boundaries thereof), and such board shall be 
satisfied that said petition contains the names of two-thirds of 
the owners of real estate within such limits, and that such pro- 
posed ordinance would be just and expedient, they shall pass an 
ordinance prohibiting the erection of any wooden buildings within 
the limits described in such petition : Pjvvidcd, hozaevcr, That such 
fire-limits shall be confined, as near as practicable, to the business 
part of such town. 

See § 3106, clause 32, notes ; § 3333, clause 3, note 4. 



§§3336—3340 TOWNS. [438 

[1S79 S., p. 204. Approved March 19, 1879, and in force May 31, 1S79.J 

Sec. 3336. Lighting streets, i. The board of trustees of any in- 
corporated town is hereby empowered, in addition to the powers 
they now have, to contract for lighting the streets of such town 
with gas, in all cases where gas-works have been erected and mains 
laid on the streets to be so lighted. Such contract shall not, 
however, be made for a longer period than one year at a time. 

Electric light, 3229c. 

Sec. 3337. Tax for lighting. 2. In all cases contemplated by the 
preceding section, and where such contract has been made under 
said section, such board of trustees is hereby authorized to levy 
and collect a special tax, for such purpose, of not exceeding three 
dollars on the one thousand dollars of the taxable property within 
such incorporated town, to be levied and collected as other corpo- 
ration taxes are now levied and collected. 

[i R. S. 1852, p. 482. Approved June ii, 1852, and in force May 6, 1853.] 

Sec. 3338. Public grounds and wharves. 49. The trustees shall 
have jurisdiction over any commons or public ground belonging 
to said town, and shall have power to regulate, with the consent 
of a majority of the owners thereof, the banks, shores, and wharves 
of that portion of any navigable stream within its corporate limits; 
but no ferries heretofore, or which may hereafter, be established 
by law, shall be prejudiced or in any manner affected by the pro- 
visions of this act. 

See § 3333, clause 18, and § 3106, clause 34, jiotcs, concerning zvharves ; and 
§ 3103, notes^ for ferries. Money raised for repairing streets can not be used 
for building wharves, except so far as they may be a mere incident to the legiti- 
mate improvement of a street, 6 Ind. 237. 

Sec. 3339. Money, how appropriated. 24. All moneys, however 
derived, belonging to such corporation, shall only be appropriated 
for such objects and defraying such expenses as accrue, or neces- 
sarily arise, in the exercise of powers granted by this act. No 
appropriation shall be made without an order to that effect entered 
upon a proper book, to be kept for that purpose by such board. 

This section does not prohibit a town from appropriating money to pay 
counsel for defendmg the town marshal when sued for false imprisonment in 
making an arrest for a violation of a town ordinance, 103 Ind. 196. 

Sec. 3340. Claims. 25. No account or claim against said town 
shall be audited or allowed by the board of trustees, unless it be 
made out fully and itemized. And every such account audited 
shall be numbered from one upward, in the order they were pre- 
sented, and a memorandum of the same entered upon a book to be 
kept exclusively for that purpose. 

Sec. 3341. Money, how drawn. 26. No account or claim shall be 
paid unless audited and allowed by the board as aforesaid ; and no 
moneys shall be drawn from the treasury, except by a warrant 



439] LOANS AND BONDS. [§§ 3342, 3343 

Upon the treasurer, signed by the president of said town and at- 
tested by the clerk thereof. 

[1891, p. 3S9. Approved and in force March 9, 1891.] 
Sec, 3342. Loans. 27. No incorporated town under this act 
shall have power to borroAV money or incur any debt or liability, 
unless a majority of the resident owners of the taxable real estate 
of said town shall petition the board of trustees to contract such 
debt or loan. Such petition shall have attached thereto an affida- 
vit verifying the genuineness of the signatures to the same. And 
for any debt created thereby, the trustees shall add to the tax 
duplicate, of each year successively, a levy sufficient to pay the 
annual interest on such debt or loan, with an addition of not less 
than five cents on the hundred dollars, to create a sinking fund for 
the liquidation of the principal thereof 

1. Previous to 1S91 this section was repealed so far only as it relates to the 
issuing of bo7ids bv towns for the purposes specified in sections 4488 and 4489. 
See 44 Ind. 83 ; 58 Ind. 329 ; 22 Fed. Rep. 589. 

2. The trustees of a town may purchase, for cash^ necessary apparatus for 
the extinguishment of fires. On proper petition of the required number of 
tax-payers, thej' may purchase such apparatus on credit ; and they may give 
commercial pafe7'^ 60 Ind. 504; 72 Ind. 91. 

3. The debt created in accordance with the petition can not be rendered 
invalid by the petitioner signing a remonstrance after such debt is created, 60 
Ind. 504; but signing a remonstrance after signing a petition is equivalent to a 
withdrawal of the name of the signer from the petition ; and this he may do at 
any time before the petition is acted upon, 24 Ind. 146. 

4. Loaning the credit of the town, see 30 Ind. 485. 

5. A purchase on credit of property, without a petition, is void, 45 Ind. 
250. 

[1875, P- 149- Approved and in force February 25, 1875.] 

Sec. 3343. Bonds, i. Any incorporated town in this State, 
which shall have, heretofore, by the action of its board of trustees, 
commenced the erection of any public building, to be used as a 
market-house, engine-house, or for other public purposes, and 
shall not have the necessary means with which to complete such 
building, on the passage of an ordinance, authorizing the same, 
by the board of trustees of said incorporated town, may issue the 
bonds of such town, to an amount not exceeding in the aggregate 
ten thousand dollars, in denominations not less than fifty dollars 
nor more than five hundred dollars, and payable at any place that 
may be designated in the bonds, the principal in not less than one 
year nor more than ten years after the date of such bonds, and the 
interest annually or semi-annually, as may be therein provided, to 
provide the means with which to complete such building Provided, 
That sruch bonds shall not be sold at a price less than ninety-four 
cents on the dollar, 'nor bear a greater rate of interest than eight 
per cent, per annum. 

1. See §§ 4488, 4489. 

2. The interest may be secured by coupons attached to the principal bond ; 
and these coupons may be detached, and suit maintained upon them when due, 
53 Ind. 191. 



§§ 3344, 3345] towns. [440 

3. The supreme court of the United States has decided that a town of this 
State can not issue and sell in open market negotiable paper for the purpose of 
raising money to fund its indebtedness, although it has a general authority to 
contract loans and issue evidences of debts, to raise money to pay its necessary 
expenses and indebtedness. The fact that such paper was issued to take up valid 
paper previously issued does not render the last issue valid. Nor is the town 
prevented from defending by reason of the fact that it has received the proceeds 
derived from the sale of such negotiable paper, ii Sup. Ct. Rep. 441, affirming 
22 Fed. Rep. 589. In an action upon bonds issued by a town the authority to 
issue them must be alleged and proved, and the purpose for which they were 
issued, if the bonds contain no recital of those facts, 118 U. S, 148; S. C; 6 Sup. 
Ct. Rep. 1025, affirming 8 Fed. Rep. 777. 

Sec. 3344, Proceeds paid treasurer. 2. The proceeds of the 
sales of such bonds shall be paid to the treasurer of said incorpo- 
rated town, to enable said board of trustees to complete such 
building ; but before payment to said treasurer, he shall file with 
the board of trustees a bond, payable to the State of Indiana, in 
a sum not less than the full amount of the said money to be paid 
to him, and with security to be approved by said board of trustees, 
conditioned for the faithful and honest application of said money 
to the purpose for which the same was provided. 

Sec. 3345. Tax to pay interest. 3. In addition to the levy of 
the tax by incorporated towns for general purposes, now authorized 
by law, the board of trustees of any incorporated town which shall 
avail themselves of the provisions of this act are hereby authorized 
and required to levy, annually, a special additional tax, at the 
same time and in the same manner as other taxes of such town are 
levied, sufficient to pay the interest of said bonds falling due ; 
which additional special tax shall be assessed and collected as the 
taxes for state and county revenue are assessed and collected. 
And the treasurer of said town shall keep accurate accounts of the 
revenue arising from such special tax, and shall, in his reports, 
when required by the board of trustees, shov/ the amount thereof, 
if any, remaining delinquent. He shall pay out the same only by 
the authority of the board of trustees of such town, and shall per- 
mit the same to be applied to no other purpose than the payment 
of the principal and interest of such bonds: Provided, always^ 
That the additional special tax, hereby authorized, shall not, in 
any one year, exceed fifty cents on each one hundred dollars of 
taxable property and one dollar on each poll. 



Treasurer's Bond. 

We, , , , the undersigned, are jointly and severally 

bound to the State of Indiana in the sum of dollars, subject to the fol- 
lowing condition : 

Whereas, the town of , of the State of Indiana, has issued bonds 

under an act of the general assembly of the State of Indiana, approved Feb- 
ruary 25, 1875, for the completion of an engine-house within said town, in the 

sum of dollars, and the proceeds of the sales of said bonds are about to be 

paid to the treasurer, , of said town : Now if the said shall faith- 



44l] FINES SUITS AND IMPRISONMENTS. [§§3346,334/ 

fully and honestiv apply all of said proceeds of said money that he may so re- 
ceive to the purpose for Avhich the same was provided, then this bond shall be 
void, else in full force and effect. 
[Signed.] 



Board's Approval of Bond. 

Resolved, that the bond of , treasurer of this town, filed with the 

"clerk of this town on the day of , i8 — , for the faithful and honest 

application of all money derived from the sale of bonds to complete the erec- 
tion of the engine-house now in process of erection in this town, be and the 
same is hereby approved by this board , and the clerk is hereby directed to en- 
dorse upon it the approval of this board. 

Approval. 

Approved by order of the board of trustees of the town of 



L. X., 

Town Cle-rk, 

[i R. S. 1S52, p. 4S2. Approved June II, 1852, and in force May 6, 1853] 

Sec. 3346. Fines. 23. Such board of trustees shall have power 
to enact fines, penalties, and forfeitures for violations of this act, 
or of any by-law or ordinance by them established, not exceeding 
ten dollars for any one offense, which may be recovered by an 
action in the name of the corporation. But such board may remit 
the whole or any part of the fine, penalty, or forfeiture : Provided, 
That the fine assessed for the violation of any ordinance requiring 
a license shall not be less than the amount required to be paid for 
such license, although it may exceed the sum of ten dollars. 

I . These fines are paid into the general fund of the town, and can be used for 
general purposes. They do not go to the school fund. 

[1883, p. 132. Approved March 6, 1883, and in force June 5, 1SS3.] 

Sec, 3347. Suits — Imprisonment. 57, Any person violating the 
provisions of any ordinance of a town organized under this act, to 
which there may be a penalty affixed, may be prosecuted before a 
justice of the peace of such town, and in case there be no acting 
justice therein, then before the justice of the peace residing nearest 
to said town, in the county in which such town is situated, upon a 
warrant issued by such justice, as in cases of misdemeanors, aiid 
such person, upon conviction, shall stand committed until the judg- 
ment and costs are paid or replevied, and in default of payment or 
replevy of such judgment and costs, the defendant, unless a female, 
may be adjudged and required to pay the same by manual labor 
upon the streets or other public works of said town, under the 
control of the marshal of said town, for which labor such defend- 
ant shall be allowed on such judgment and costs seventy-five cents 
per day. It shall be the duty of such marshal or such other offi- 
cer as the board of trustees of such town may direct, to work such 



§ 3347] TOWNS. [442 

defendant not less than six nor more than ten hours per day, 
according to the season, and each evening to return him to the 
custody of the keeper of the prison in whose custody such defend- 
ant was committed, and upon the full payment, as aforesaid, of 
such judgment, costs and accrued costs, such defendant shall be 
fully discharged. And such marshal is hereby authorized and re- 
quired to perform all the duties herein prescribed, and to use all 
proper means thereto. And the board of trustees are hereby 
vested with full authority to pass by-laws and ordinances for com- 
pelling the enforcement of such manual labor by such defendant, 
by the use of sufficient force and means as they may deem right 
and proper. Such defendant may be com.mitted to the town 
prison, or if such town has no prison, then to the county prison of 
the county in which such town is situated, and in the latter case it 
shall be the duty of such person having charge of such prison to 
receive such defendant and obey the judgment of the court in ref- 
erence to him, and for the keeping, custody and boarding of said 
defendant, the keeper of such prison shall receive fifty cents per 
day, to be paid by such town on the presentation of an itemized 
account therefor, and he shall receive only one commitment and 
one discharging fee ; and such defendant may, at any time, replevy 
and pay such judgment and costs. And in case he has performed 
labor under such judgment, he shall be entitled to a credit for the 
same to the amount of labor performed, and the balance may be 
paid or replevied as aforesaid. [El. Sup. § 830.] 

1. The -j.'arraut may be issued to a constable or the town marshal, § 3066, 
7iofe I. All defe?ises,ey.ceipt the statute of limitation and matters in abatement, 
may be proved under the general denial, § 3066, 7wte 5. Proof of passage of 
ordinaiice^ see § 3066, note 8. Appeal^ § 3066, note 9. Trial 071 appeal^ § 3066, 
7iote II. Costs^ 3066, 7iote 12. Appeal to supre7ne court, § 3066, 7iote 13. Dam- 
ages, § 3066, 7iote 14. Strangers, § 3066, 7tote 15. Estoppel, § 3066, note 16. 
Construction of ordinances, § 3066, 7iote 18. Jiirors, § 3066, 7tote 19. Process, 
§ 3066, note 21. Trial in ahse7ice of defe7ida7it, § 3066, 7iote 21. I7istrjictitig 
jury, § 3066, 7iote 20. 

2. The board of county commissioners regulate the number oi justices of 
the peace, being limited to three for each township, except where there is an in- 
corporated town within the township, then they order an additional one to be 
elected, and when there is a city, two additional justices, R. S. 1881, § 1418. 
They may require a town or city justice to reside within the town or city for 
which their offices were created. Thev are all elected bvthe voters of the entire 
township, 28 Ind. 51. And if no justice resides within a town, upon petition of 
the board they may appoint a person justice for the town who resides therein, 
§ 3347«- 

3. h. prosecutio7i for the violation of a town ordinance mav be instituted 
before a7iy justice of the township residing within the corporate limits of the 
town, 28 Ind. 51 ; or it may be brought in the circuit court of the county, 29 Ind. 
118; 73 Ind. 117. Th-e jurisdiction of a justice is limited to two hundred dol- 
lars, 90 Ind. 258; R. S. 1881, § 1433. 

4. Actions for the recovery of penalties for violation of town ordinances are 
civil actions, 73 Ind. 117; 90 Ind. 258 ; and the imprisonment lor enforcing thein 
is not in violation of the constitution, 95 Ind. 70. See § 3066, 7iote 4. 

5. The complaint is sufficient where it contains averments of the proper 
enactment of such ordinance, the violations of its provisions by the defendant, 
and the acts constituting such violation, 73 Ind. 117. It is not necessary to avet 



443] SUITS AND IMPRISONMENTS. [§ 334/ 

that the members of the board of trustees which passed the ordinance were dulj 
elected, nor that they had authority to pass the ordinance, nor that it had been 
published 95; Ind. 70; 25 Ind. 490, Merely filing as a complaint a copy of the 
section violated, unaided by averment, is not sufficient; and a judgment ren- 
dered thereon in favor of the town will be arrested, 79 Ind 183. Courts do not 
take judicial notice of town ordinances nor of their contents. Those sections 
violated must be set out i7i the complaijit, or made exhibits, 118 Jnd 114 ; or the 
complaint will be insufficient. They can not be referred to by number and date 
of passage, as in cases of city ordinances. If more than one section is necessary 
to make out a complete offense, all such as are necessary must be set out; and 
merely setting out the section inflicting the penalty is not enough. The title of 
the ordinance need not be set out, 90 Ind 258; 118 Ind. 114 ; 22 Ind. 192; 25 Ind. 
490. If the section filed contains exceptions in favor of the defendant, these ex- 
ceptions must be negative, 33 Ind. 507. But see § 3066, note 6. Perhaps the 
complaint will be defective for not stating the date of the passage of the ordi- 
nance, 33 Ind. 507. It is sufficient to allege that the board of trustees enacted 
the ordinance, 118 Ind. 103, 114. Alleging that the ordinance is "attached to 
and made a part of this complaint," is sufficient to make them exhibits, 118 Ind. 
114. See § 3066, note 6. 

6. The subject-matter of the ordinance need not be covered by the title; the 
clause of the constitution with reference to statutes in that respect not applying 
to ordinances, 25 Ind. 490. 

7. A defendant can not enjoin the collection of a fine on the ground that 
no offense was charged in the complaint. The remedy is by appeal, 49 Ind. 329; 
§ 3066, note 10. 

8. The defendant can not assail the validity of the electio7i of the trustees 
that passed the ordinance, 29 Ind. 118; § 3066, note 17. 

9. Performance of a sufficient amount of work amounts to a paj-ment of the 
judgment. There can be no work required upon the street unless there is a 
judgment to that effect, 64 Ind. 155. If there is no judgment to that effect the 
tovNii marshal will be liable to the prisoner in an action for false imprisonment 
if he works him on the street, 67 Ind. 474. A prisoner may now be committed 
to the county workhouse under the proper judgment and be compelled to work, 
§ 6232. The town must pay the expense of keeping him there, by a contract with 
the countv, § 6232. If confined in the workhouse he is entitled to a credit of 
one dollar per day for each day he works, § 6239. Of course, if there confined, 
and no opportunity is allowed him to work, he will be entitled to a credit, for 
each dav confined, of one dollar. 



Ccmplaint. 

Before A. B.^ a justice of the Peace of Toxvnship, 

The Town of , ) Complaint for , 



U- 



State of Indiana^ County of , .tj?.- 

The town of complains of L U , and says that on the 

day of , 18 — , at and in said county and State, and within the cor- 
porate limits of said town of , the said defendant, then and there being, 

did then and there \Descrihe vjith reaso7iable certainty the act done or omitted 
that it is claimed to have been a violation of the tow7iordi)ia}icc'\^ contrarv to and 

in violation of section [cr, sections] • of an ordinance of said town adopted 

by the board of trustees thereof on the day of , iS — , a copv of which 

section is attached hereto and filed herewith marked "Exhibit A," and made a 
part hereof [(^r, is as folloAvs, to wit: Settitio- out the secfio7i\ to the damage of 

said town dollars. Wherefore the plaintiff demands judgment for -^ 

dollars. 

R Z . 

Attornov lor tlic PlaintitV. 



§ 3347] TOWNS. [444 

Z. R. being duly sworn, upon his oath says that the matters and things al- 
leged in the foregoing complaint are true as he verily believes. 

Z. R. 

Subscribed and sv^^orn to before me this day of , iS — . 

[Notary Seal.] X, L., 

Justice of the Peace, 
\or. Notary Public] 

Warrant. 

State of Indiana^ County^ ss: 

To a?iy Constable, of County [or, To the Marshal of the Tozvn of 

]. Greeting: 

You are hereby commanded to arrest , and bring forth- 
with before me at my office, to answer the charge of having, on the day 

of , 18 — , at and in said county and State, and within the jurisdiction oi 

the town of , committed a violation of section of an ordinance of 

said town adopted by the board of trustees thereof on the day of , 

18 — , as said town has complained on the oath of one . 

Dated this — day of , 18 — . 



L. X., 

justice of the Peace. 



Return. 



I have arrested the above named defendant , and have — 

body now in court. 

this day of , 18—. 

Fees. \Give items.] Q^ X. 

Docket Entries. 



The Town of 
vs. 
L X- 



No, 



On this day of 18 — , A B , said town's attorney, 

filed with me a complaint, verified by C. D., charging E, F. with a violation of 

section of an ordinance of said town passed and adopted by the board 

of town trustees thereof on the day of , 18 — ,by \unlawfully firing 

a pistol ■U'ithin the limits of said city.\ 

Whereupon I issued a warrant and delivered the same to X. L., the marshal 
of said town, commanding him to forthwith arrest the said E. F., and bring him 
before me at my office. And I also issued a subpoena for H. B,, J. S., and S. B., 
to testify in behalf of said town. 

And afterwards, to wit, on the same day, said marshal returned the warrant, 
with his doings indorsed thereon as follows; 

Come to hand this day of , 18 — , at ■ a. m., and I have 

executed the same by arresting the within named defendant, and now have his 
body before the court. 

Fees. \Give items.\ X. L., 

Marshal. 

And he also returned said subpoena indorsed as follows: 
Served by reading to and within hearing of the within named witnesses. 

X.L., 

Marshal. 

The defendant, being in court, ordered a subpoena for E: B. to testifj' in his 
behalf, which was issued and delivered to said marshal, and was afterward re- 
turned indorsed as follows: 

Served by reading to and within the hearing of the within named E. B. 

Fees. \Give items, \ . X. L., 

Marshal. 



445] TAXATION. [§§3347^-3348 

Now, at this time comes W. R. J., said town's attorne}', and the defendant and 
all the witnesses being present, this matter is submitted to the court upon the 
testimony of sworn witnesses, and the court having heard the evidence, and be- 
ing fully advised in the premises, finds that the defendant is guilty as charged 
in the complaint; and it is, therefore, considered by the court that the defendant 

forfeit and pay to said town the sum of dollars, together with costs taxed 

at dollars cents, and that he stand committed until said judgment 

and costs be paid or replevied. 

It is further adjudged by the court that if said judgment be not so paid or re- 
plevied, the defendant shall be required to pay the same at manual labor on the 
streets or other public works of the said city, under the control of the street 
commissioner, at seventy-five cents per day, [<?r, in case the tozvn has a zuork- 
hotise^or there is one in the co?(nty, and if said fine is not paid or replevied forth- 
with, that said defendant be committed to the town [or, county] work-house of 

the county of , of the State of Indiana, and that he be required to pay the 

same by manual labor in said work-house at the rate of seventy-five cents per 
day, or, if hi the county zvork-housc, at the rate of one dollar per day.] 

[1891, p. 33. Approved and in force February 26, 1891.] 

Sec. 3347^. Justice of peace for town, i . Where a town has 
been incorporated and there is no justice of the peace resident 
within the corporate Hmits of such town, the board of county 
commissioners of the county in which such incorporated town is 
situated, shall, upon the petition of a majority of the board of 
trustees of such incorporated town appoint a justice of the peace, 
who shall reside and hold his office in such incorporated town. 
Said board of county commissioners shall certify to the gov- 
ernor of the State to such appointment and upon the receipt of 
such certificate of such appointment the governor shall commis- 
sion such person so appointed as justice of the peace. Said jus- 
tice shall hold his office until his successor is elected and qualified. 

See 6 3347, note t. 

Petition. 

To the Honorable Board of Commissioners of the County of ; 

The undersigned, trustees of the town of , State of Indiana, 

hereby pray that your honorable board will appoint a justice of peace who 
shall reside and hold his office in said town. 

Dated , 18—. A. B., 

C. D., 
E. F., 
Triistees. 

ARTICLE 3— TAXATION. 



SEC, 



334S. Annual tax, when fixed. 3353- Duplicate to auditor. 

3349. Tax levy. 3354- County treasurer to collect. 

3350. Warrant for collection. 3355. Road tax. 

3351. Tax. how collected. 3356, Levy of road tax. 

3352. Redemption of real estate. 

[1855, p. 130. Approved March 3, 1S55, and in force August 17, 1S55.] 

Sec. 3348. Annual tax, when fixed. 30. The board of trustees 
shall, before the third Tuesday in May of each year after the town 
shall have been incorporated, determine the amount of general tax 



§33491 TOWNS. L440 

for the current year ; but the tax for the year In which the town Is 
Incorporated may be determined, at any time, by the board of 
trustees. 

1. In the making of assessment of taxes and the sale of lands and property 
for taxes, towns are now governed by the gcjieral tax lazv so far as applicable, 
see § 3263. The office of assessor is abolished, § 3262 ; tniplattcd lands, § 3261 ; 
hayik stock, § 3254 ; fo%ver to tax and exemption, § 3156, note 7; illegal assessment, 
§ 3156, note 8; bonds of United States, § 3156, note 9 ; capital stock, § 3156, note 
10 ; railroads, § 3156, note 11 ; person moving into town, § 3156, 7tote 13; road tax^ 
§ 3i56«. 

2. This section is constitutional, A^i^ Ind. S3. See 40 Ind. 491; 11 Ind. 139; 
27 Ind. 332; 22 Ind. 204; 48 Ind. 568. 

3. The word "«fe/er ;«/;/<?" means to "assess and levy," and the time of 
making the levy is now changed by § 3262 until after the county board of review 
has acted upon the tax assessment, 82 End. 493; 104 Ind. 363. Formerly, the levy 
could not be made after the third Tuesday in May, 44 Ind. 83; 14 Ind. 306; 
but now the levy may be made Avithin a reasonable time after the adjournment 
of the county board of revievv, 104 Ind. 363. 

4. Where the owner of personal property, which belongs elsewhere, resides 
in a town, such personal property can not be taxed by such town. The situs 
of personal property, for the purpose of taxation, does not follow the domicile 
of the owner, 92 Ind. 222. The personal property of a person who is not a res- 
ident of the town, at a railroad station awaiting shipment to the residence of 
the owner, can not be taxed by the town, 89 Ind. i ; (see 27 Ind. 388; 21 -Ind. 
335.) Property collected from one or more points, by means of transportation, 
awaiting the necessary preparation and facilities for further transportation is 
in transit while so detained, and can not be taxed by the town in v.hich it is 
situated; but if it is there to await indefinitely the owner's pleasure or the rise 
of markets, or to undergo a partial process of manufacture, or from any other 
cause having no relation to the preparation for or facilities or exigencies of 
transportation, it maybe taxed by such town, 103 Ind. 302. 

5. Thus, staves purchased by a citizen of another State, remaining in a town 
of this State to receive a finishing process before shipment to another State, 
may be taxed by the town. Such a tax is constitutional, 96 Ind. 179. But 
money, Avherever it may be, owned by a resident of a town on the first day of 
April, where between then and the first day of June he becomes a resident of 
such town, is taxable for that year by such town, 108 Ind. 353. So where two 
members of a firm of three owned v:atcr-craft, resided in town P., of this State, 
the property being kept at a harbor two miles beyond the town, and the third 
partner resided in another town, it was held that such craft could be taxed by 
the town P., 106 Ind. 170. But*this has been changed by statute. See § 6293. 

6. The collection of taxes can not be enjoined on the ground that there 
was no valid survey and incorporation of the town, especially where the town 
has exercised jurisdiction over the land taxed for a long period of years, 82 
Ind. 493. 

[i R. S. 1852, p. 482. Approved and in force May 6, 1853.] 

Sec, 3349. Tax levy. 33. When the assessment-roll shall have 
been corrected and completed, the trustees shall levy a tax upon 
the taxable property of said tov/n to such an Amount as they may 
deem necessary, and shall set opposite the name of each person 
taxed a description and valuation of the property charged there- 
with, and the amount of tax assessed against such person. And 
when such tax-list shall have been made, they shall cause a copy 
thereof, with a warrant annexed, to be delivered to the marshal of 
such town. The original assessment-roll and tax-list shall be de- 
posited with the treasurer of such town, who is hereby charged 
with the safe custody of the same. 



44/] TAXATION. [§§ 3350, 335 1 

I. When collected by the county treasurer, the taxes are put upon the 
county duplicate, in installments, in columns marked " town taxes," the town 
being named. When collected by the town marshal, they are collected in in- 
stallments, in conformity to the general state law, as provided by § 3263. The 
assessment-roll should be made out as a tax duplicate is made out. Quite a 
diversity ex'ists in the collection of town taxes in installments, some towns col- 
lect in one and some in. two ; but it is clear that the latter method is the correct 
one. 

Sec. 3350. Warrant for collection, 34. Such warrant shall be 
under the seal of the corporation, signed by the president and 
trustees, or a majority of them, and attested by the clerk, and 
shall comm.and the marshal to collect the taxes specified in the 
duplicate within ninety days, and pay over the same, and make 
return of said warrant to the treasurer of said town. Such trustees 
may renew such warrant for any period not exceeding thirty days. 

Warrant. 

State of Indiana^ County of , ^-.t. 

The Tozvn of , to A. B.^ Greeting: 

You, as marshal of said town, are hereby commanded out of the goods 
and chattels of each and every person named in the within and annexed tax 
duplicate, and of each and every person whose name may hereafter be lawfully 
added thereto, either by the clerk of said town or by yourself, to cause to be 
made, by distress and sale, if necessary, the amount of tax charged against each 
and everj of said persons named in the annexed duplicate, and of each and 
every person whose name is hereafter lawfully entered thereon, and pay the 
amount paid over to the treasurer of this town ; and make report of your doings 
in the premises to this board by the third Monday in April next; and make a 
full return and report, and final settlement thereof, by the first Monday in No- 
vember, 18 — . And this shall be a full authority to you in said premises. 

Witness our hands and the seal of said town this ' ■■ day of 18 — . 

[Town Seal.] A. B., 

CD., 
E. F., 

Trustees of the Town of . 

Sec. 3351. Tax, how collected. 35. The marshal shall collect 
the taxes on said duplicate when so required, and shall have the 
same power to enforce collections and shall be governed by the 
same rules and regulations as county treasurers and county audi- 
tors ; and shall have authority, in like manner, to collect by distress 
and sale, and to make conveyances and certificates of real estate 
sold by virtue of such sale. Such sale, if at a county-seat shall 
be at the door of the court-house or place of holding court ; and, 
if not at the county-seat, it shall be held at the door of the town- 
hall or place of meeting of the board of trustees; and the clerk of 
said board shall perform the like duties, at said sale, as are re- 
quired of the county auditor at a sale for state and county taxes : 
and all deeds or conveyances for lands so sold for taxes shall be 
p?ivia facie evidence of the validity of such purchase. 

I. A sale of lands for taxes, at fr irate sah\hy the marshal of an incor- 
porated town, was held void, 70 Ind. 536. The law authorizing pri\-atc sales 
has now been abolished. 



§§ 3352—3356] towns. [448 

2, Money paid at a tax sale can not be recovered from the town on the 
ground that the sale is void^ if the taxes for which the land was sold were due, 
no Ind. 208. 

3. Towns are now governed by the ge7ieral tax lazv so far as applicable, 
§ 3263. See §§ 6424 to 6445 on collection of taxes; § 6446 on liejis and payment 
of taxes; §§ 6457 to 6465 on sales of realty ; § 6457 for delinquent list;' § 6457 for 
advertiseme7it; certificate of sale, § 6464 and § 3091 ; tax deed, § 6479 to 6490. 
The clerk executes the tax deed. 

Sec. 3352. Redemption of real estate. 36. Any real estate sold 
by virtue of this act shall be redeemable under the same regula- 
tions and restrictions as real estate sold for county and state taxes 
is made redeemable. All moneys for the redemption of such real 
estate shall be paid to the treasurer of the corporation. 

See §§ 6466 to 6478. 

Sec. 3353. Duplicate to auditor. 37. The trustees of such town 
may, at their option, deliver the tax duplicate to the auditor of the 
proper county, on or before the first day of August in each year, 
instead of to the marshal of such town; and said auditor shall enter 
said tax, and, if delinquent, the interest and penalty thereon, upon 
his duplicate. 

Sec. 3354. County treasurer to collect. 38. The treasurer of 
such county shall collect the corporation taxes upon such dupli- 
cate as other taxes are collected, and pay the same over to the 
treasurer of such corporation. The auditor and treasurer shall be 
allowed and paid by the corporation the same compensation as is 
paid by the county for like services. 

The county auditor and county treasurer sell lands delinquent for town taxes 
when such treasurer collects the town tax, the same as other taxes, changing 
the usual forms so as to show that the sale is for town taxes. 

Sec. 3355. Road tax. 47. Nothing contained in this act shall 
exempt the inhabitants of any town from the payment of highway 
taxes legally assessed, nor from the formation of one or more road 
districts irrespective of the corporate limits of such town. 

I. A road tax for township purposes might formerly be collected on property 
within an incorporated town situated in the township where levied, 41 Ind. 580. 
But all this has now been changed bv 6 3i56«; and the inhabitants can not 
now be required to pay or work out a township road tax. So far as this section 
conflicts with § 3367 it is repealed, 65 Ind. 404. 

[18S1 S., p. 708. Approved and in force March 25, 1881.] 

Sec. 3356. Levy of road tax. 2. The town trustees shall have 
power to levy a road tax not to exceed twenty-five cents on the 
one hundred dollars' taxable property within such corporation, in 
addition to the powers now conferred upon them by law for the 
levy and cohection of taxes: Provided, That the board of com- 
missioners or township trustees shall have no power or authority 
to levy a road tax on any property within the corporate limits of 
such town. 

See 6 3156a, and § 3355, note. 



449] IMPROVEMENT OF STREETS. [§§ 3357, 3358 



ARTICLE 4— IMPROVEMENT OF STREETS. 

SEC. SEC 

3357- Sidewalks. 33'33. Misdemeanor. 

335S. Requisites of sidewalk ordinance. 336?. Street improvement. 

3359. Owner failinsr, town makes. 3564- Street improvement, 

3360. Cost, how recovered. 336^. Cost, how apportioned. 

3361. Driving on sidewalk. Z^i^- Cost, how collected. 

[1S59, p. 1S4. Approved and in force February 14, 1859. 1 

Sec, 3357. Sidewalks, i. Whenever, in the opinion of the 
board of trustees of any incorporated town in this State, public 
convenience requires that the sidewalks of any street in such town 
should be graded or paved or planked, such board of trustees may, 
by an ordinance, compel the owners of lots adjoining such street 
to grade, pave, or plank the same. 

1. See § 3333i clause 9. This and the following four sections are not 
repealed by § 3364 and the sections following it. 114 Ind.371. Sidewalks may be 
built under § 3364 and the sections following. This section does not apply to 
the improvement of streets, 114 Ind. 371. 

2. The board of trustees are the exclusive judge of the Jiecessity of improv- 
ing the sidewalks of a town, 120 Ind. 185 ; 127 Ind. 130; 63 Ind. 262. Prohi- 
bition does not lie to prevent the execution of a contract with the town for build- 
ing a sidewalk; inju^iction is the proper remedy, if there be any, 63 Ind. 262. 
The fact that the land along which it is desired to build a sidewalk is agricul- 
tural laud, hov/ever much it may be, is no reason why the courts should 
restrain its construction, 63 Ind. 262 ; the statute on the taxation of agricultural 
land within a town not applying, 34 Ind. 497. Nor is the intentioti of the oivuer 
thereof to build the walk at the time the ordinance requiring its construction 
is passed any reason for restraining the town, especially if the town has no 
notice of his intention, 63 Ind. 262. In an action to enjoin a town in construct- 
ing a sidewalk the courts will presume that all necessary ordinances were duly 
passed for the construction of such sidewalk, 63 Ind. 262 ; 34 Ind. 497. Under 
this section no petition is necessary, 49 Ind, 322 (distinguishmg 35 Ind. 532) ; 
127 Ind. 130. 

3. If the owner of the property stands by. and, without objection, permits 
improvements to be made which benefit his property, he is estopped to after- 
ward deny the authority of the town to make improvements, 120 Ind. 185. See 
§ 3163, note 13. But mere silence and a failure to object and prevent the im- 
provement will not estop him to contest the assessment against him, made with- 
out contract. In such an instance the contractor will not be heard to allege 
that the lot-owner accepted the work ; for that he can not do, only the town 
trustees having authority to do that, 79 Ind, 137. 

4. The board are not prevented from changing the width of a space of a 
street previously paved by the fact that they had paved it to that width, and 
they may narrow the sidewalk, to which action the adjoining lot-owner can not 
object unless he sustains irreparable injury, 127 Ind. 130; S. C 26 N. E. Rep. 
676. 

5. Under this section the board have no power to repair the sidewalk at 
the expense of the abutting lot-owners; but when the sidewalk becomes for its 
entire length unfit for travel they may order it regraded and re-improved, or 
simply re-improved. Repairing must be done under § 3363, 127 Ind. 130 ; S. C 
26 N. E. Rep. 676. 

Sec. 3358. Eequisites of sidewalk ordinance. 2. Such ordinance 
shall specify the height of the grade, if the grade of any such 
sidewalk is to be altered, the width of such pavement, and the 
time when the same shall be done. 
29 



§ 335S] TOWNS, [450 

The ordinance establishing grades is not void for 7inccrtainiy , if the grades 
so established can be ascertained without difficulty, 49 Ind, 322. But such an 
ordinance must be published at least ten days (§ 3333, clause 16), or have an 
emergency clause to piotect a contractor against a suit for the damages 
occasioned to his lot by reason of the improvement of the street in accordance 
with its provisions. Until then it is not in force ; and every one acting under 
it is liable to the lot-owner for whatever damages he may suffer, 108 Ind. 208. 



Ordinance. 

Sec. I. Be it ordained by the board of trustees of the town of , that 

the sidewalk on the north side of that part of Lincoln avenue lying between 
Pratt and Grant streets be graded and paved at the expense of the owners of 
.-ots which abut thereon. 

Sec. 2. Said sidewalk shall be constructed six inches above the present 
established grade of said Lincoln avenue, of hard paving brick laid on twelve 
inches of sand, and to a width of five feet \or. said sidewalk shall be con- 
structed upon the following grade, to wit : Taking as the initial point the top of 
a stone marked with a cross, standing at the northwest corner of said Lincoln 
avenue and Pratt street, and from thence east to the northeast corner of said 
Lincoln avenue and Grant street, on a descent of three and eighty-hundredths 
feet ; grade per rod, two and seventeen-hundredths inches. The same shall be 
planked to a width of five feet with two-inch new oak lumber, free from rot, laid 
on three stringers, each four by four inches], to the satisfaction of the town 
civil engineer. 

Sec. 3. If the owner of any lot abutting upon said sidewalk shall fail to 
grade and pave [cr, plank] the same within thirty days from the passage of this 
ordinance, then it shall be the duty of the town marshal to let out so much of 
the grading and paving [or, planking] thereof as abuts upon such owner .-■ lot to 
the lowest bidder, first giving ten days' notice by posting up written notices 
thereof in three public places in said town for that length of time; and when 
said grading and paving [<?r, planking] is done, said marshal shall report the 
cost thereof to this board, and the expense thereof shall be paid out of the 
treasury of the town. 

Sec, 4. This ordinance shall be in force from and after its publication in 
the Covington Weekly Argus for a period of ten days [<?;', from and after it has 
been posted for a period of ten days in five public places within said town; 
or^ there existing an emergency, owing to the bad condition said sidewalk is 
now in, for the immediate taking effect of this ordinance, the same shall be 
in force from and after its passage.] 



Ordinance Establishing Grade for Town. 

Sec. 1. Be it ordained by the board of trustees of the town of , that 

the grade of the several streets of said town, herein below named and specified, 
be and i'^ hereby declared, defined and established as follows, viz.: Initial point 
of said grade shall be the top of a stone marked with a cross and standing near 
the southwest corner of Main and Broad streets in said town ; from said initial 
point west to the northeast corner of Broad and Court streets, twenty-one rods, 
a descent of three and thirty-hundredths feet, a grade per rod of two and sev- 
enteen-hundredths inches. From the northeast corner of Main and Broad streets 
west to the corner of Broad and Elm streets, distance twenty-one rods, descent 
two and seventy-hundredths feet, grade per rod one and fifty-four hundredths 
inches, etc. 

Sec. 2. All sidewalks, pavements, crossings and gutters hereafter built, 
laid or constructed along or upon said streets, shall be made with reference to 
and in strict accordance Avith the. grades hereinbefore established. 

Sec. 3. Whereas, there exists an emergency for the immediate taking effect 
of this ordinance, the same shall be in force from and after its passage. 

[See 49 Ind, 322.] 



451] IMPROVEMENT OF STREETS. [§3359 

Sec 3359. Owner failing, town makes. 3. If the owner of such 
lots shal] fail or refuse to grade, pave, or plank such sidewalk, as 
required in such ordinance, it shall be the duty of the marshal of 
such town forthwith to let out the grading, paving, or planking of 
such sidewalk to the lowest bidder, first giving ten days* notice, 
byposting up written notices thereof in three public places in such 
town for that length of time. And when such grading, paving, or 
planking is completed, said marshal shall report the same to said 
board of trustees, and the cost of such work shall be audited and 
paid out of the treasury of such town as other claims against said 
corporation are audited and paid. 

The reasonab]e costs incident to letting the contract maj be included in the 
foreclosure of the lien, if there be any ; but the marshal is not entitled to any 
pay for his services in the premise. 

Advertisement for Bids to Improve Sidewaii<s. 

Notice is hereby given that I Avill receive sealed bids up to 4 p. m. on 

the day of , iS — , at the office of the clerk of the town of , of 

the State of Indiana, for the grading and paving [or, planking] of so much of 
the sidewalk in front of Lot 16 of Kohl's addition to said town, on Lincoln ave- 
nue, according to the provisions of the ordinance adopted by the board of 
trustees of said town on the day of , iS — . Said grading and pav- 
ing [or, planking] to be completed within thirty days after the awarding of the 
contract, and to the satisfaction of the town civil engineer; and to be awarded 
to the lowest and best bidder. I hereby reserve the right to reject any and all 
bids. 

Dated , 18—. A. X., 

Marshal of the Town of . 

Bid. 

, Ind., , 18—. 

To A. X., Marshal of the To'vn of ; 

Sir: The undersigned proposes to grade and pave [or, plank] so much 
of the sidewalk as lies in front of Lot 16 of Kohl's addition to said town, on 
Lincoln avenue, according to the provisions of the ordinance adopted by the 

board cotrustees of said town on the day of , 18 — , for the grading 

and paving [or, planking] of the sidewalk on the north side of Lincoln avenue, 

from Pratt to Grant streets, for dollars [or, dollars and cents 

per lineal foot]. 

A.B., 

Contractor. 

Contract. 

This agreement, made and entered into this ■ day of , 18 — , 

by and between A. B., of county, and State of Indiana, and the town of 

, of said county and State, witnesseth that said A. B. covenants and 

agrees to grade to a height of six inches above the established grade of the 
adjacent avenue, and pave to a width of live feet, with good and hard 
paving brick, laid on twelve inches of sand, so much of the sidewalk on the 
north side of Lincoln avenue as abuts upon lot 16 of Kohl's addition to said 

town, at and for the price of dollars [cr, dollars and cents per 

lineal foot.] Said sidewalk shall be completed by the day of , iS — . 

and in accordance to the terms of an ordinance passed by the board of trustees 

of said town on the day of , 18 — , for the grading and paving of so 

much of the sidewalk on said'Lincoln avenue as lies between Pratt and Grant 
streets, and to the acceptance of the town civil engineer. Said A. B, covenants 



§ 3359] TOWNS. [452 

and agrees that he will exercise, in the prosecution of said work, all proper skill 
and care ; that he will properly and fully guard and protect all excavations, 
or dangerous places, and will use all due and proper care to prevent injury to any 
property, person or persons whatever; and that he will omit no reasonable pre- 
caution which will tend to the security of all persons and property. Said A. B. 
further covenants and agrees to supply all earth required to complete the neces- 
sary grading, and if a surplus, to remove the same to some street or alley, not 
exceeding a distance of half a mile, as shall be directed by the town civil en- 
gineer, and spread the same to his satisfaction. [The said A. B. further agrees 
to maintain said work and keep it in good repair, to the entire satisfaction of said 
engineer, for a period of years from the date of completion thereof, with- 
out cost to the town or the owner of said lot; and if at any time during said 
period said work, or any part thereof, shall, in the opinion of said engineer, 
require repairing, said A. B. shall, upon notice from said engineer, immediately 
make such repairs; and in case of failure to make the same within ten days 
from service of such notice the town shall have the right to purchase such 
materials as it shall deem necessary, and employ such persons as it may deem 
proper, and to undertake and complete said repairs, and collect the costs thereof 
from said A. B. and sureties, jointly and severally.] If said M-ork be not finished 
by the time specified, and according to the above specifications, then this con- 
tract shall be void and of no effect in law, and said town shall have the privilege 
and option of forfeiting this contract and reletting said work, and said A, B. 
shall be liable for all damages that may accrue by said failure to perform said 
work according to this contract; and unless said work shall be done within the 
time specified, said A. B. shall not recover for any part of the Avork done under 
this contract. 

In testimony whereof, said town of , by A. X., its marshal, and said 

A. B., have hereunto set their hands this day of , 18 — . 



The Town of 



By A. X., 

Town Marsha!. 

A. B., 

Contractor. 

[If the town desires to take advantage of the contractor's failure to comply 
with the contract, the board of trustees should enter in the town record a 
declaration that the contract is forfeited ; and the marshal should be ordered to 
advertise and relet the work.] 

Bond. 

Know all men by these presents, that Ave, A. B. as principal, and CD. 

andE.F.as sureties, of the county of , and State of Indiana, are held and 

firmh' bound to the town of , Indiana, in the sum of dollars, for 

the payment of which, well and tri:ly to be made, we jointly and severally bind 
ourselves firmly by these presents. 

The conditions of the above obligation are such, that if the above bound 
A. B. shall faithfully comply with the foregoing contract, made and entered 

into this day'of -, 18 — , with the town of , Indiana, and fulfill 

all the conditions and stipulations therein contained, according to the true 
intent and meaning thereof in all respects, then this obligation shall be void ; 
otherwise to be and to remain in full force and virtue in law ; and in the event 
said town shall extend the time for the completion of said work, such extension 
shall not in any way operate to release the sureties on this bond. 

Witness our hands and seals this day of , 18 — . 

A. B., [Seal.] 
C. D., [Seal.] 
E. F. [Seal.] 
Marshal's Report. 

To the Board of Trustees of the Tozvn of .• 

I hereby report that, after notice having been duly given, I let the contract 
for the grading and paving \_or, planking] of so much of the sidewalk on the north 
side of Lincoln avenue as abuts upon lot 16 of Kohl's addition to said town to 



453] IMPROVEMENT OF STREETS. [§ 336O 

R. U., he being the best and lowest bidder; and said R. U. in all things has per- 
formed his contract for such grading and paving [or planking]. The amount 

due him thereon, according to his bid, is dollars and cents. 

L.X,, 

^Marshal. 

Sec. 3360. Cost, how recovered. 4. Such board of trustees may 
immediately, by a suit in any court of competent jurisdiction, in 
the name of such corporation, recover against the owner of such 
lot the amount of the cost of paving or planking and grading such 
sidewalk ; and upon execution against the property of said defend- 
ant upon such judgment, the same shall be sold for cash without 
regard to the valuation and appraisement laws of this State. And 
from the date of the completion of such pavement or planking or 
grading under contract by the marshal, the costs of such grading 
and paving or planking, and the damages aforesaid, shall be a lien 
on such lot, and may be enforced in any court of competent juris- 
diction, by an action in the name of such corporation. 

1. There is xio persojial liability under this and the three preceding sections, 
a lien only against the lot improved. The actio?i may be commenced as soon 
as the -work is done, and even before payment by the town ; for a liability to pay, 
in a case of this kind, is sufficient to authorize the bringing of the action. The 
lien does not attach until the work is completed. The action must be brought 
in the circuit or a superior court of the county Avherein the land lies. If the land 
has been co7iveyed by the owner after the work has been commenced and before 
suit brought, only the purchaser need be made defendant; and if the vendor is 
made z. party he can successfully demur for want of facts as to himself. 

2. Averring that the work has been "^duly completed" is a sufficient averment 
that the walk has been completed in accordance with the specifications of the 
ordinance. The ordinance need and can not be made a part of the complaint 
as an exhibit^ 77 Ind. 126. 

3. Contractors can be compelled to satisfy the records establishing a lien 
when they have been paid. This must be done by an ordinance, §3229/. 



Complaint. 

In the Circuit Cotcrt. 

The Tovjn of , vs, A- B . No. . 

The town of complains of A. B, and says: That on the 



day of 18 — , the board of trustees of said town, by a resolution and ordi- 
nance duly adopted, directed and ordered that the sidewalk on the north side 
of Lincoln avenue, between Pratt and Grant streets, be graded to a height of 
six inches above the then established grade of said avenue, and that it be paved 
to a width of five feet with hard paving brick laid on twelve inches of sand. 
By the terms of said resolution, due notice of which w^as given by the marshal 
of said town to said A.B. immediately after the passage thereof by said board, 
said grading and paving was required to be completed within thirty days there- 
after. That said A. B. was then and is now the owner of lot 16 of Kohl's addi- 
tion to said town, which lot abutted upon said sidewalk. That said A. B. failed 
to grade and pave said sidewalk within said thirty days, or at any time what- 
ever; and in pursuance of the provisions of said resolution and ordinance, and 
the statutes in such case made and provided, the marshal of said town, after 
ten days' notice, by posting up written notices thereof in three public places in 
said town iof that length of time, let out the grading and paving of so much of 
said sidewalk as abutted upon said lot 16, to R. L., he being then and there the 

lowest and best bidder, at and for the sum of dollars and cents. 

That said R. L. immediately entered into a contract with said town for the 
performance of said work ; and in pursuance of said contract completed said 



§§ 3361—3363] TOWNS. [454 

work to the acceptance of the duly authorized civil engineer of said town on the 

day of , 18 — , which was also duly accepted by the board of trustees 

of said town, and the contract price therefor, to wit: ,$ , was duly allowed 

and paid by said town before the bringing of this action. That said amount, to 

wit: $ , is now due and Avholly unpaid. 

Wherefore the plaintiff prays judgment for $ , the foreclosure of the 

lien upon said lot created by reason of the completion of said work; and that 
said lot be ordered sold for the payment of the amount of said contract and all 
cost and accrumg cost. 

- R. U., 

Attorney for Plaintiff. 

[1867, p. 194. Approved and in force March 9, 1867.] 

Sec. 3361. Driving on sidewalk, i. It shall be unlawful for any 
person to ride or drive upon the brick, stone, plank, or gravel 
sidewalk of any town or village, or upon any similar sidewalk for 
the use of foot-passengers by the side of any public highway in 
this State, unless in the necessary act of crossing the same. 

[1859, p. 185. Approved March 3, 1859, and in force August 6, 1859.] 

Sec. 3362. Misdemeanor. 3. Any person who shall violate any 
of the provisions of this act shall be deemed guilty of a misde- 
meanor, and, upon conviction thereof, shall be fined in any sum 
not exceeding three dollars. 

1. This is a state or crimi7ial frosecutio7i ; and an offender may be pros- 
ecuted before any justice of the peace of the county or m the circuit court bv 
information or indictment. 

2. It is unlawful to ride a bicycle on the sidewalk of a town or city ; and if so 
used the rider is liable civilly for an injury inflicted upon a footman, although 
the act be unintentional, 117 Ind. 450; 120 Ind. 46. 

Affidavit. 

Ths State of l7idiana vs. A B . No, . 

C. D., being duly sworn, upon his oath says, that said A. B. did, on the 

day of , 18 — , within the county of , and State of Indiana, 

unlawfully drive a two-horse wagon, then and there drawn by two horses, over 
the brick sidewalk situated on the north side of Lincoln avenue, and within 

the corporate town of , of the county and State aforesaid, he, the said 

A. B., not then and there being in the necessary act of crossing said sidewalk ; 
contrary to the statute in such case made and provided. 

CD. 

Subscribed and sworn to before me this day of , iS — . 

L. X., 

Justice of the I'eace. 

[1857, p. 73. Approved and in force March 5, 1S57.] 

Sec. 3363. Street improvement. 46. Whenever two-thirds of 
all the resident owners, in number or in value, of real estate, 
bounding both sides of any street, not less than one square, shall 
petition to have such street or sidewalks connected therewith 
graded, paved, or otherwise improved, or the sidewalks thereof 
built or repaired; or when two-thirds of the owners of real estate, 
in number or in value, on one side of such street, shall desire a 



455] 



IMPROVEMENT OF STREETS. 



[§ 3363 



sidewalk on that side, it shall be the duty of such board to levy 
and cause to be collected by tax upon all the owners of all real 
estate or lots on such street or part of a street, or such side of a 
street, according to the last appraised valuation of said real estate, 
exclusive of any improvement that may be made thereon, such sum 
of money as is necessary for the improvement of said street or side- 
walk as in said petition requested. At the time of making such 
levy, said board shall fix the nature, extent, and specifications of 
the proposed improvement. And any person upon whose real estate 
any such tax is levied may satisfy the same, or any part thereof 
by labor done and materials furnished for the proposed improve- 
ment, under the direction and to the acceptance of said board. If 
any person against whose real estate a tax shall be levied for the 
purpose of building or repairing a sidewalk shall have previously 
built a sidewalk adjoining to the whole of the real estate so taxed, 
to the acceptance of the board, or shall afterward build or repair 
the same within the time prescribed by said board and to their 
acceptance, it shall be a full discharge of such tax for the improve- 
ment of such sidewalk. 

1. Non-7'esident owners can not sign this petition, but their property must be 
considered in estimating whether the requisite number or value is represented 
on the petition. The tax is collectible as soon as levied, even before anj part 
of the work is performed. The ordinance should contain the amount of tax 
chargeable to each land-owner ; and such tax is collected the same as ordinary 
taxes, except that it is payable forthwith, unless otherwise specified in the ordi- 
nance. The grading and graveling, etc., is performed by the town ; or it may 
let it out by contract. In the latter event the board can advertise for sealed bids 
and award the contract, each step of which proceeding should be duly noted in 
the journal. 

2. Under this section a petition is necessary ; but the board may determine 
the grade, the width to which it shall be improved, and in otherwise adopting 
specifications for the work. It is only under this section that the town can 
repair a street or sidewalk at the expense of the abutting land-owner; but such 
repairs may be made and paid for by it out of the general fund of the town, 127 
Ind. 130; S. C. 26 N. E. Rep. 676. 



Petition. 

(According- to length.) 



To the Board of Trustees of the To-mii of .• 

The undersigned, two-thirds in number of all the resident owners of 
said town, of all the real estate bounding on both sides of so much of Grant street 
as lies between Seward and Stanton streets of said town, not less than one 
square in length and a distance of 1,000 feet, ask that so much of the road- 
way of said Grant street be graded and graveled, and that you cause a tax to be 
levied upon and collected from all the owners of all real estate on said part of 
said street to pay the cost of said improvement. 





Names of rvesident Owners. 


No. of Lot. 


Addition. 


No. Feet Front. 








1 



§ 3363] 



TOWNS. 



[456 



Petition. 

(According- to vahie.) 



To the Board of Trustees of the To-vjn of ; 

The undersigned, two-thirds in value of all the resident owners, of said 
town, of all the real estate bounding on both sides of so much of Grant street 
as lies between Seward and Stanton streets of said town, not less than one 

square in length and of the value of dollars, ask that so much of said 

Grant street be graded and graveled, and that jou cause a tax to be levied vipon 
and collected from all the owners of all real estate on said part of said street^ to 
pay the cost of said improvement. 



Name of Resident Owner. 


No. of Lot. 


Value Exclusive of Improvement. 









Petition for Sidewalk. 



To the Board of Trustees of the Totvn of : 

The undersigned, two-thirds in number of the owners of said town of 
all the real estate bounding and abutting upon so much of the south side of 
Grant street of said town, as lies between Seward and Stanton streets thereof, 
not less than one square in length and a distance of 1,000 feet, ask that the side- 
walk on the said south side, between said Seward and Stanton streets, be graded 
and paved to a width of five feet with paving brick and that you cause a tax to 
be levied upon and collected from all the owners of all real estate which abuts 
upon said south part of said street, to pay the cost of said improvement. 



Name of Resident 0\vner. 


No. Lot. 


Addition. 


No. Ft. Froot. 











Ordinance. 



Whereas, A. B. and others, two-thirds in number of all the owners, 

who are residents of this town of . of all the real estate bounding and 

abutting upon both sides of so much of Grant street as lies between Seward and 
Stanton streets, have petitioned the board of trustees of said town to have that 
part of Grant street above described, graded and graveled, and to levy upon and 
to cause to be collected a tax from the Owner of so much of the real estate as abuts 
upon such part of Grant street ; and, 

Whereas, the cost of grading and graveling such part of Grant street will be 
dollars and cents ; therefore 

Sec. I . Be it ordained by the board of trustees of the town of , that so 

much of Grant street of said town as lies between Seward and Stanton streets, 
be graded according to the stakes set by the town civil engineer, on the follow- 
ing grade, to wit. Beginning at station-^ .etc.; and that the roadway be 

graveled to a v>ddth of feet, and to a depth of inches in the cen- 
ter, sloping to inches at the sides, with the best qualitj^ of raked, river 

or creek gravel. All work to be done to the entire satisfaction of the 

town civil engineer. 

Sec. 2, Be it further ordained that a tax of — 



— cents for each dollar of 
the appraised valuation of all real estate abutting upon the part aforesaid of 



457] 



IMPROVEMENT OF STREETS. 



[§ 3364 



said Grant street, exclusive of any improvement that may be made thereon, be 
and the same is hereby levied according to the following schedule, viz.: 



Name of Owner. 


Description of Proper!}'. 


Valuation. 


Amount of Tax. 











Sec. 3. Vv'hereas, an emergency exists for the immediate taking effect of 
this act, the same shall be in force from and after its passage. 

[1S69 S., p. 633. Approved and in force April 27, 1869.] 

Sec. 3364. Street improvement. 8. Whenever a majority of 
all the resident owners of any lots or parcels of land on any street 
or alley, not less than one square (to be estimated by numbers or 
by measuring the front lines of such lots or parcels of land bor- 
dering thereon) shall petition the board of trustees of such town 
to grade, pave, gravel, or macadamize, or for either kind of said 
improvement, the board of trustees may cause the same to be 
done according to the specifications by them to be adopted, by 
contract given to the best bidder, after advertising to receive pro- 
posals therefor: Provided^ That the said board of trustees may 
order the improvement as aforesaid of any street around the public 
square in such town without the filing of such petition ; and when 
the county in which such town is situate owns or controls real 
estate bordering on such public square, it shall be subject to the 
same rules and regulations as to payment for said improvement as 
the citizens of said town are subjected. 

NECESSARY PROCEEDINGS IX THEIR ORDER. 

The following steps are necessary in the order designated: 

1. Petition of a majority of all the resident owners of the lots or tracts of 
land, not less than one square, to be estimated by numbers or by measuring the 
front lines of their lots or tracts of land bordering on the street to be improved, 
§ 3364- 

2. Order for vv-ork, setting out to the specifications in the resolution, s^ 3364. 

3. Advertisement for proposals, acceptance of bid and execution of a con- 
tract. The order, advertisement, written bid, and acceptance of record may 
constitute the contract, § 3364. 

4. Estimate of cost and apportionment to the lots or tracts according to 
number of feet each lot or tract borders on the improvement, 1^ 3365, which 
estimates are a lien on the lot, § 3365, 

5. Enforcement of payment, by the contractor, by suit in the circuit court, 
§ 3366. 



I. A resolution is sufficient; an ordinance is not required, ^^ 3162, note 4; 
sufficiency of resolution, § 3162, note 4; optional W\t\\ board to order improve- 
ment, § 3162, note 5 ; reimproving, § 3162, note 5 ; patent process, § 3162, note 7; 



railroad, § 3162, note 11; cemetery, § 3162, note 
13 ; sta- 
note 17. 



street railroad, § 316: 



note 

;i62, 



§ 3364] TOWNS. [4S8 

2. This secticyn does not repeal §§ 3357 to 3360, Under this section side- 
ivalks maybe improved. The term "street" includes sidewalk, 114 Ind. 371, 
and upon a petition for the improvement of a street the board may order both 
the driveway and sidewalks adjacent improved, 114 Ind. 371. 

3. The board of town trustees acquire jurisdiction of the improvement of 
a street within the town only where a majority of all the owners of the lots or 
parcels of land abutting on the street, residing within the town, shall petition 
them for such improvement, 91 Ind. 477. A resolution without a petition suffi- 
cientlv signed has been held void, 35 Ind. 532. But see 125 Ind. 407. Under 
such circumstances, where the work was in progress and was a damage and not a 
benefit to the citizens of the town, it was held that a resident tax-payer of the 
town may, for himself and others of like interest, enjoin the prosecution of the 
work, 35^Ind. 532. 

4. A member of the board of trustees can not take the contract for improv- 
ing the street ; if he does, the contract is void, and he can not recover for the 
work performed, 91 Ind. 477. 

5. A written advertisement by the town authorities of the work to be done, a 
■written bid to do the proposed work, and a written acceptance of the bid by the 
proper authorities, together constitute a sufficient and binding contract, 114 
Ind. 371. Unless the contract is in writing, there can be no recovery, 79 Ind. 
137; and a written proposal by the contractor and an oral acceptance by the 
board is not such a contract, 66 Ind. 452. See § 3366, note. 

6. Where an advertisement for bids stated that they w^ould be received up 
to a certain hour on the following "Saturday, September 19th," but the nine- 
teenth being Sunday, tlie bids were opened and the contract let on the eight- 
eenth, this was held a valid transaction, 70 Ind. 31; 65 Ind. 29. 

7. A petition is not necessary for the improvement of the streets around a 
p7(,hlic square; and the contractor for such improvement, on receiving an esti- 
mate, may present his claim therefor in the form of an account to the board of 
county commissioners, who have the power to allow it, and if payment is 
refused, he may either appeal from the action of the board to the circuit court, 
or bring an action against the county, 36 Ind. 87. It is not necessary that the 
account so presented should state all the steps, required by law to make a valid 
assessment, that were taken, 36 Ind. 87. 

8. The board of town trustees can not order a street, in the same or one 
proceeding, to be opened or widened, graded and graveled ; because the proceed- 
ing to open and widen is distinct fron> a proceeding to grade and gravel; the 
txvo proceedings can not be blended^ and an assessment made by virtue of such 
an order is void; 84 Ind. 94. 

Petition. 

(By numbers). 

To the Board of Trustees of the Toxvn of .- 

The undersigned, a majority m number of the resident owners of lots 
and parcels of land abutting upon so much of Hulet street as lies between 
Norris and Doney streets of said town, not less than one square in length, pray 
that the roadwav of so much of said Hulet street may be graded and graveled. 

(Signed) 

Petition. 

(By numbers in feet). 

To the Board of Trustees of the Totvn of .• 

The undersigned, a majority of all the resident owners of lots and par- 
cels of land on so much of Hulet street as lies between Norris and Doney streets 
of said town, a distance of not less than one square, to wit: one thousand feet, 
which majority is ascertained by measuring the front lines of the lots and par- 
cels of land bordering on said part of said Hulet street, respectfully ask that you 
will order that the roadway of said part of said street be graded and graveled. 



459J 



IMPROVEMENT OF STREETS. 



[§3364 



Xames of resident owners. 
[Sio-ned by oz'jner.] 


No. feet fronting- on said 
part of Unlet Street. 


No. Lot or de- 
scription of land. 


Addition. 











Ordinance. 

Whereas, A. B. and others, resident owners of lots and parcels of land 
on so much of Hulet street of this town as lies betw^een Norris and Done v streets 
thereof, have petitioned this board to cause the roadway of said part of Hulet 
street to be graded and graveled ; and 

Whereas, said petitioners are a majority in number of all the resident owners 
of the lots and parcels of land abutting on said part of Hulet street 

[or, Whereas, said petitioners are a majority in the number of feet of the 
front lines of the lots and parcels of land abutting and touching upon said part 
of Hulet street], therefore 

Sec. I. Be it ordained, by the board of trustees of the town of , that 

so much of the roadway of said Hulet street as lies between Norris and Doney 
streets of said town be graded according to the stakes set by the town civil en- 
gineer, on the following grade, to wit: Beginning at station, etc 

and that the same be graveled to a width of feet, and to a depth of 

inches m the center, sloping to inches at the sides, with the best quality 

of raked, river or creek gravel. All the work to be done to the entire satisfac- 
tion of the town civil engineer. And that the expense of said improvement as 
aforesaid (except the proportion thereof occupied by the public grounds of said 
city bordering thereon, and the crossings of streets and alleys) be assessed 
against and collected from the owners of lots and parcels of land bordering on 
said part of Hulet street aforesaid. The town clerk is directed to advertise for 
bids for making said improvement, to be opened at the next regular miceting of 
the board. 

Sec. 2. Whereas, an emergency exists for the immediate taking effect of 
this ordinance, the same shall be in force from and after its passage. 

Advertisement for Bids. 

Notice is herebj' given that bids will be received by the board of 

trustees of the town of , up to 7 p. m. on the day of , iS — , at 

the office of the town clerk, for the grading and graveling of so much of Hulet 
street as lies between Norris and Doney streets of said town, according to the 

provisions of the ordinance adopted by said board on the day of , 

18 — , for the improvement of said part of said Hulet street. The right is re- 
served to reject any and all bids. 

By Order of the Board of Trustees 

OF the Town of . 



Journal Entry. 



By L.X., 

Town Clerk. 



Ordered that the contract for grading and graveling of so much of 
Hulet street as lies between Norris and Doney streets be awarded to A. B., he 
being the best and lowest bidder. It is also ordered that the written contract 
and the bond for a faithful performance of said contract therewith tendered for 
said grading and graveling be and the same are hereby accepted and approved. 



und( 



Contract and Bond. 

[For a form of contract and bond, which can be modified, see the forms 
3162.] 



§§ 3365> 3366] TOWNS. [460 

Sec. 3365. Cost, how apportioned. 9. In all contracts specified 
in the last preceding section, the cost of any such improvement 
shall be estimated according to the whole length of such street or 
alley, or the part thereof to be improved, per running foot; and 
the town shall be liable for so much thereof only as is occupied by 
public grounds of said town bordering thereon, and the crossings 
of the streets and alleys; and the owners of lots or parcels of land 
bordering on such street or alley, or the part thereof to be im- 
proved, shall be liable to the contractor for their proportion of the 
cost of such improvement in the ratio of the first [front] line of 
lots or parcels of land owned by them to the whole improved line: 
Provided, That w^hen the owner of any lot or parcel of land shall 
have made any improvement in front of his lot or parcel of land 
in accordance with the general plan for the improvement of such 
street or alley, and under the direction of the board of trustees, 
he shall be entitled to a reasonable allowance therefor upon his 
proportion of the cost of such improvement; which reasonable 
allowance shall be determined by said board of trustees: Provided^ 
That every such owner of lot or parcel of land, improved as afore- 
said, shall be entitled to a credit for his road tax and road-labor tax 
that may accrue for the year in which the im.provement is made. 

1. Correcting- assessments^ § 3164, note 3 ; fayment in advance, § 3164, 7iote 
4; practice in making assessments, § 3164, note 5; constitutionality of section, 
§ 3164, note 6; contractor may compel ^xi.dX estimate bj mandamus^ 77 Ind. 307; 
§ 3164, note 7; assessment must %\vo\^ amount due ^ ^'X)'^6j^^note%\ joint 0'W7iership, 
\ 3164, note 8; other property improperly assessed, § 3164, note g; property 
assessed must be described^ § 3164, 7iote 10; lien attaches when estimate is made, 
§ 3164, note 11; estoppel, § 3164, note 13; coverttire no bar, § 3164, note 14; county 
property^ § 3164, note 17; assig7i7nent of estimate, 77 Ind. 307; § 3162, note 19; 
§ 3164, note 18; ne'iV assessment may be made if old is void, § 3164, note 19; 
assessment basis of suit, § 3164, note 19; to-wn not liable, § 3162, note 18. 

2. The road tax worked out by a lot or land-OAvner assessed for the improve- 
ment must be accepted as a payment /r6> tanto of the amount of the assessment 
against him. This will leave a deficiency due the contractor, which the town 
must pay out of the general fund. The road receipts are sufficient evidences of 
the payments of the amount named therein. 

Sec. 3366. Cost, how collected. lo. When any such contract 
shall be made, or shall have been heretofore made, and shall have 
been fulfilled or in progress of fulfillment, the board of trustees 
shall have power to cause estimates to be made, from time to time, 
of the amount of work done by contractor, and to require such 
amount to be paid to him, deducting a reasonable percentage to 
secure the completion of the contract, until the whole shall be 
finished, and to prescribe the time in which the whole shall be 
completed ; and such estimate shall be a lien upon the ground upon 
which they are assessed, in favor of said contractor. In case any 
of the owners of lots or parcels of land on which such assessments 
have been made, shall fail or refuse, for the space of ten days after 
the date of the estimate, to pay the amount thereof due by such 
person to such contractor, such contractor may immediately, by a 



461] IMPROVEMENT OF STREETS. [§ 33CJ 

suit in any court of competent jurisdiction, recover against such 
owners of lots or parcels of land the amount of such estimate ; and 
upon execution against the property of said defendant upon such 
judgment, the same shall be sold for cash without regard to valua- 
tion or appraisement laws of this State: Provided, That in such 
suits on estimates, no question of fact shall be tried which may 
arise prior to the making of the contract for said improvement 
under the order of the board of trustees. When any contract 
for the improvement of any street or alley has been heretofore 
made, and wholly or partially completed, and the said improve- 
ments wholly or partially unpaid for, such contractor may collect 
the same under the provisions of this act, provided the require- 
ments of this act have been followed by the board of trustees in 
letting such contract. 

1. The sufficiency of the complaint by a contractor, to recover for improv- 
ing a street in a town, may be tested by a demurrer but not as to matters occur- 
ring prior to the contract, 114 Ind. 371 {contra^ 47 Ind. 565). See § 3165, notes 
26, 33. The contractor must at his peril see that all the steps necessary to fix 
liability have been taken, § 3165, note 28. 

2. "In every case where an incorporated town seeks to improve the streets 
within its limits at the expense of the parties whose lots borderupon the street, 
except in the case of a street ' around ' the public square, there must be a peti- 
tion signed by a majority of the property owners upon which to base the action 
of the board ; there must be specifications sufficient to show the kind, and 
quantity and location of the work to be done ; there must be an advertisement 
for proposals to do the work ; a contract to do the work according to the speci- 
fications must be entered into ; the work must be done according to the contract, 
and the amount of the contract price therefor must be estimated to the differ- 
ent tracts of ground bordering on the street improved ; and the board must re- 
quire the owners of those tracts to pay the amount so estimated, and upon the 
failure or refusal of the owners of such lots or parcels of land upon which such 
estimates have been made, for the space of ten days after the date of such 
estimate, the contractor may immediately bring suit and recover, against the 
owners of such lots or parcels of land, the amount of such estimates. These 
are the essential requisites of the statute, and, in our opinion, should be sub- 
stantially averred in the complaint ; for otherwise there is no protection to the 
owners of property in incorporated towns," 47 Ind. 565 ; 61 Ind. 113, 323 ; 66 
Ind. 452. If the contract contains a clause that the contractor is to receive 
nothing until his laborers are paid, he must aver and prove that they were all 
paid before the action w^as brought, 77 Ind. 307. The city is not liable for the 
amount of the assessment on account of a refusal to make a proper assessment; 
the remedy is by mandamus to compel it to do so, 77 Ind. 307. 

3. Exhibits of the petition for such improvement, the record of the action 
of the board of trustees thereon, and other documents connected therewith, 
can not be made to the complaint. They are unnecessary^, and if so attached 
will not be considered by the court, 61 Ind. 113 ; 84 Ind. 94. The contract be- 
tween the town and the contractor must be made an exhibit ; but bond for a 
faithful performance of the work given the town need not be, 79 Ind. 137. The 
assessment must be made an exhibit, 84 Ind. 94. 

4. The contractor should aver in his comflai^it^ for the purpose of showing 
that the requirements of the statute have been complied v/ith, and that the de- 
fendant's lot has been charged with no more than its just proportion of the cost 
of improvement, the facts in regard to such cost, the whole length of the im- 
provement, the length of defendant's front line thereon, and that the cost 
thereof has been estimated to the different lots or parcels of land bordering 
thereon, and the owners thereof, in the proportion prescribed by the statute, 66 
Ind. 452; 84 Ind. 94. 



3366] 



TOWNS. 



[462 



5. Unless otherwise averred, it will be presumed that the contract is an 
oral one, and it will be subject to a demurrer; and even if no demurrer is filed, 
a written contract is not admissible in evidence at the trial. An acceptance of 
a hid w^hich contains no agreement bj the contractor to do the work according 
to the specifications, is not a valid contract, 66 Ind. 452 ; 79 Ind. 136. See § 3364, 
note 4. 

6. Generally, see § 3165^, note 6, and 127 Ind. 130. 

Estimates. 

[For a form of estimate, which maj be modified so as to constitute either a 
partial or final estimate, see form under § 3164.] 



Journal Entry on Estinnate. 

Whereas, R. U., civil engineer of this town has reported to this board 
an estimate and apportionment among the owners of real estate bordering 
thereon, of the cost of the improvement of so much of Hulet street of this tow-n 

as lies between Norris and Doney streets thereof, in length feet, of 

which feet is occupied by public grounds, alleys and streets of this town, 

according to the contract of — 



with this town for the improvement of said 
part of said street ; therefore be it resolved that said estimate and apportion- 
ment is hereby in all things approved and adopted by this board as the true 
estimate and apportionment, as aforesaid, of the cost of said improvement, 
to wit: 

Total cost of improvement % 

Amount to be paid by this town $ 

Apportionment among the owners of lots and parcels of land Avhich border 
on said part of Hulet street, viz.: 



Name of Owner. 


No. Lot. 


Addition. 


No, feet bordering- on said 
part of Hulet street. 


Amount due. 













Total, 



iQ.Qt, .>- 



And whereas, as it also appears that S. T. is the owner of lot 25 of Blair's 
addition to this town, which lot borders on that part of Hulet street so improved 
as aforesaid for a distance of 50 feet; and 

Whereas, it appears that said S. T. has improved so much of said Hulet 
street as his said lot borders thereon, in accordance with the general plan for 
the improvement specified in the ordinance directing the said improvement of 
said part of Hulet street, under the direction of this board ; therefore 

It is ordered that said S. T. be allowed a credit upon the assessment against 

said lot to the amount assessed against it, to wit: dollars and — 

cents. 

Complaint. 



B- 



vs. C- 



In ilie 
D- 



Circuit Courts 
No. . 



A. B. complains of C. D. and says: That upon the 



Term. 18 — . 



day of- 



iS — , L. X. and others, who were then and there a majority in number of all 
the resident owners of the lots and parcels of land on that part of Hulet 

street lying between Norris and Doney streets, of the town of , county 

of , and State of Indiana, presented a petition to the board of trustees of 

said town, praying that the said part of said Hulet street be graded and grav- 



463] IMPROVEMENT OF STREETS. [§ 3366 

eled at the expense of the owners of lots and parcels of land on Said part of said 
Hulet street. That pursuant to the prayer of said petition said board of trus- 
tees on the day of , iS — , adopted an ordinance ordering the grad- 
ing and graveling of said part of said Hulet street, which ordinance took effect 
immediatelj by reason of a clause therein inserted declaring it necessary that 
it should at once go into effect. That by the provisions of said ordinance said 
part of Hulet street was required to be graded according to the stakes set by the 

town civil engineer, as follows, to wit: Beginning at station , etc., and to 

be graveled to a width of- • feet, and to a depth of inches in the cen- 
ter, sloping to • inches at the sides, with the best quality of raked, river or 

creek gravel: all the work to be done to the entire satisfaction of the town 
civil engineer; and the expense thereof, except that portion occupied by the 
public grounds of said town bordering thereon, and the crossings of the streets 
and alleys, to be assessed against and collected from the owners of lots and par- 
cels of land bordering on said part of said Hulet street. That said board, by the 
town clerk, advertised for proposals to do said work, by posting up written ad- 
vertisements for bids in five of the most public places of said town, and awarded 
the contract therefor, at a regular meeting of said board, to this plaintiff, he 
being the best and lowest bidder therefor. That pursuant to the awarding of 
said contract, said town, by its board of trustees, at a regular meeting thereof, 

and this plaintiff entered into a v^-ritten contract to do said work, within 

days thereafter, according to the specifications of said ordinance, at and for the 

price of ■ dollars and ■ cents per square yard of surface thereof, 

which contract is filed herewith, marked " Exhibit A," and made a part hereof. 

That pursuant to the terms of said contract this plaintiff, within said days, 

performed said work, in all things complying with the terms of his said con- 
tract and the terms of said ordinance, to the entire satisfaction of the town 
civil engineer; and the same was duly accepted by said board of trustees. That 

the entire length of said improvement is leet,the length of the front lines 

of the public squares, streets and allej'S of said town bordering thereon is 

feet and ■ ■ inches, and the length of the front line of the defendant's lot 

bordering thereon is feet. Thai upon the day of , 18 — , 

the town civil engineer made an estimate of the cost of said improvement at 

dollars and cents, and reported it to said board, who adopted the 

same as the true cost thereof; and at the same time he estimated that said town 

should pay • dollars and cents, and that said defendant should pay 

dollars and • cents, by reason of the front line of his said lot border- 
ing upon said improvement, to wit: Lot of Blair's addition to said town 

of , county of , and State of Indiana, which estimates were in all 

things adopted by said board at the time they were so made and reported, as 
the estimate and apportionment of the cost of said Vv^ork, and ordered that the 
same be paid to this plaintiff by the owners of the several lots and parcels of 
tracts so assessed, a copy of which assessment so adopted is herewith filed 
marked " Exhibit B," and made a part of this complaint. That this plaintiff 
immediately before the bringing of this action demanded of said defendant the 

said sum of dollars and cents, so assessed against said lot, but 

said defendant failed and neglected to pay the same for the space of t^n days 
after the date of said estimate and its adoption by said board; and the same is 
now due and wholly unpaid. 

Wherefore the plaintiff demands judgment for dollars, the foreclos- 
ure of said lien upon said lot, and a decree that the same be sold to satisfy the 
amount found due from said defendant by reason of said improvement. 

L. X., 

Attorney for the I'hiintifi". 



3367] TOWNS. [464 



ARTICLE 5— OPENINGS AND VACATIONS. 

SEC. SEC. 

3367. Power over streets, bndg-es, etc. 3378. Imperfect plat. 

336S. Openine streets. 3379- Vacation. 

3369. Duty of commissioners. 33^0. Proceedings concerning- vacation. 

3370. Tender of damages. 33S1. Title on vacation. 

3371. Assessment — Collection. 33S2. No vacation, unless owners consent. 

3372. Action on report — Appeal. 3383- Additions, how vacated. 

3373. Infants and insane. 3384. Change of name. 

3374. Record of plats. 3385. Vacation of unused public square. 

3375. Donation by plat. 33S6. Public square — School. 

3376. Plat, how acknowledged. 33S7. Action by county board. 

3377. Penalty. 

[1S69 S., p. 33. Approved and in force, April 27, 1S69.] 

Sec. 3367. Power over streets, bridges, etc. i. The board of 
trustees of incorporated towns in this State shall have exclusive 
power over the streets, alleys, highways, and bridges within the 
corporate limits of such town, and may prescribe the height and 
manner of construction of all such bridges, and lay out, survey, and 
open new streets and alleys, and straighten, narrow, widen, grade, 
and gravel, and otherwise alter and improve those already laid out, 
or that maybe hereafter laid out, and make repairs thereto as here- 
inafter provided. They may cause buildings, structures, and other 
things in the way of any streets or other public improvement to 
be taken down, removed, and appropriated, upon the payment of 
damages as hereinafter provided. And no person residing in said 
town shall be compehed to work on any road or highway without 
the corporate limits of said town. And the board of trustees may 
exercise all the powers given to township trustees in regard to 
highways in their respective towns ; and the marshal, under the 
direction of the board of trustees, may perform all the duties and 
exercise all the powers of road supervisors in reference to a road 
labor tax, not to exceed two days in each year, by each person 
liable to work on roads in townships, and shall be governed by the 
same rules and regulations in reference to the collections and en- 
forcement of the same ; and any person so liable to work may be 
discharged therefrom on the payment of one dollar and fifty cents 
per diem : Provided, That the board of trustees may, by general 
ordinance, prescribe the time within which and the manner in 
which such labor shall be performed. 

1. It is the duty of a town to keep its public streets and alleys in safe con- 
dition for ordinary modes of travel, 57 Ind. 192. See § 3161, notes 16 to 28. 

2. Working out road tax, §§ 3156(7, 3355 and 3356. Removal oi obstructions, 
§ 3161, notes 6 to 10. Town not liable for judicial act in regard to streets, 
§ 3161, note I. May order a second improvement, § 3161, note 2. Fj-ee gravel 
roads, § 3161,720/^ 3. Market-house, § 3161, 7iote 4. Streets, alleys and side- 
walks are Jiightvays, § 3161, note 5. Railroad in street, § 3161, note 7; § 3224^. 
Dedication, § 3161, 7Jotes 11 to 14, 127 Ind. 130. Adverse user, § 3161, note 15. 
Duty to repair, — jiegligence, §3161, 7iotes 16 to 28. Bridges, § 3161a. Judicial 
notice, § 3162, note i. These sections are constitutional, § 3166, note i. Pre- 
su?nJ)tion, as to street, § 3166, 7iote 3. Toll roads in town, § 3106, clause 18, ftote 
7. Street railivay, § 4203/. 



465] OPENING AND VACATION OF STREETS. [§ 3368 

3. This section is valid, and confers upon the corporate authorities -plenary 
fozvcr in relation to the grading and improvement of streets; and where the 
street is graded carefully, pursuant to legal authority, the owners of lots con- 
tiguous thereto have no right to compensation for consequential damages to 
such lots, unless such damages are expressly given by statute, 6 Ind. 237; 23 
Ind. 3S1. The board of town trustees have exclusive co7itrol over the streets of 
the towm, and the township authorities have none, 65 Ind. 404; 63 Ind. 262. 
Any one acting under a toximship road supervisor, who obstructs a street of 
a town situate within such supervisor's district, may be indicted and punished 
for unlawfully obstructing a street or highway, 65 Ind. 404. The board of 
county commissio7icrs can not lay out a street or highway within an incorporated 
town; but if they do attempt to do so, the remedy of the aggrieved person is by 
appeal from the order establishing such highway, and not by injunction, 60 
Ind. 72. 

4. The acts of the property owner improving it under this section are not 
the acts of the town in such a sense as to charge the latter for his negligence; 
but, in order to charge the corporation, evidence of his negligence must be sup- 
plemented by evidence that the town authorities were negligent, or that the 
work directed to be done was intrinsicalh' dangerous. This is especially true 
w^here the sidewalk is built under § 3357 ; because of the fact that the town has 
noauthority to choose agents or servants to perform the work; that is left with the 
property owner, ii3 Ind. 451. 

5. This section does not authorize the construction of a ivharf; but the cor- 
porate authorities of a town will not be restrained from grading a street merely 
because, by svich grading, a w-harf will accidentally be the result. They can not 
apply money raised for improving a street to th( construction of a wharf, except 
so far as such wharf may be a mere incident to the legitimate improvement of 
the street, 6 Ind. 237. But see § 3073, note i, and § 3162, note 2. 

6. Any person who would be liable to work on the township highways if 
there was no town at that place, maybe required to rvork 07i the streets of the 
town, and is entitled to work out his road tax; but he can not be compelled 
to work outside of the town, nor to work out his township road tax, nor to 
work in the township outside the town under the township supervisor or super- 
intendent. In the town the marshal acts as road supervisor. No ordinance 
is necessary to authorize the marshal to call out those liable to work the roads, 
but the town may adopt an ordinance on that subject. Those who are liable to 
work on the highways in towns are designated by the general road law of 1883. 
Acts 1883, p. 62, § 6; El. Sup. § 1548 ; and in the order below. 

7. The owner of a lot abutting upon a street has a property in the street as 
it exists, which can not be taken away from him without compensation; but 
under the power of eminent domain it may be taken for a public use by due 
process of law. Under this statute a street may be narrozved, and the property 
in the street appropriated in making such improvement is for a public use. In 
such an instance xvrittcn consent of the owner is not necessary; section 3382 
having no application to such a proceeding, 106 Ind. 29. 

Order Requiring Working on the Streets. 

It is hereby ordered by the board of trustees of the town of , that 

all able-bodied male persons, except insane, idiots, deaf and dumb, and blind 
persons of said town, over the age of twenty-one and under fifty years, and not 
otherwise exempt from such labor, be and are hereby required to work on the 
streets of said town two days during the month of April {or. May, or, June], 
under the supervision of the town marshal, who is hereby required to notify all 
such persons of the days upon which they are required to work. 

Sec. 3368. Opening streets. 2. When, upon petition signed by 

twelve freeholders, residents of any town, the board of trustees of 

such town may be of the opinion that public convenience requires 

the opening of a new street or alley, or widening or narrowing of 

30 



§ 33^8] TOWNS. [466 

a street or alley already opened, the board of trustees shall appoint 
three commissioners, residents of said town, who shall be disinter- 
ested freeholders, to appraise and assess the damages and benefits 
accruing to the owner of any land or lot through which any street 
or alley is proposed to be constructed or altered, or any building 
or structure thereon appropriated, as provided in the preceding 
section. Such commissioners shall, before they proceed to per- 
form their duties as said appraisers, take and subscribe an oath or 
affirmation faithfully to perform their duties as such appraisers ; 
which shall be indorsed upon or attached to their appointment, 
and filed with the clerk of the board. Twenty days' notice shall 
be given such commissioners by the board of trustees, through the 
town clerk, of the appraisement to be made, giving a complete 
description of the premises to be viewed. A like notice shall be 
given by personal service, or by leaving the same with some per- 
son of suitable age at their reputed place of abode, to each of the 
owners or agents of lots or lands upon or through which the public 
improvement or street or alley is proposed to be made. If the 
owners are unknown or non-residents, publication of the same in 
one or more newspapers of the town, or by posting up written 
notices in six public places in the town (if there be no newspaper 
published therein), for three weeks, shall be deemed equivalent to 
such personal service. 

NECESSARY STEPS IN THEIR ORDER. 

The following are the steps in their order necessary to be taken: • 

1. Petition signed by twelve freeholders, residents of the town, § 3368. 

2. Appointment of three commissioners, residents of the town, by the 
board, § 3368. 

3. Issue of appointment by the clerk, and their qualification, § 3368. 

4. Twenty days' notice to the commissioners of the appraisement to be 
made, containing a complete description of the premises, § 3368 ; and a like 
notice to the land-owners affected; in both notices the date of the meeting 
being stated, § 3369. 

5. Meeting of the commissioners, viewing of the premises, estimate of 
benefits and damages, and report to the board of town trustees within ten days 
thereafter, § 3369. 

6. Acceptance by the trustees within twenty days, of the report; appropri- 
ation by resolution of the land necessary for the street, to be entered on their 
records, and direction to the treasurer to tender each land-owner the amount 
of damages assessed to him, less the benefits assessed to him, § 3370. 

7. Assessment list made out from the report, demand of payment, and suit 
to collect the amount due, § 3371. 

8. xVppeal by person assessed or damaged within thirty days from the date 
of filing the report, § 3372. 



I. The power to straighten a street does not seem to be given in direct 
terms under this section ; but a street may be straightened under the power to 
widen or na.rrow it. Failure to indorse the oaths on the appointment is no 
causG for an injunction, § 3166, note 2; interested commissioners, § 3167, notes 



467] OPENING AND VACATION OF STREETS. [§ 3368 

I and 2; location^ § 3167, note d^\ statute must be subsfatitially complied -with, 
§ 3167, notei -^ and 12 ; power of eminent domain, § 3167, notes 6 to 11. 

2, A street can not be ordered widened and improved at the same time. 
The proceedings are entirely separate and distinct, 84 Ind. 94. 

3. If the board finds that notice of the proceedings has been given, the 
finding is conclusive, 106 Ind. 29; a property owner served can not object to the 
proceedings on the ground that another interested person was not served, 106 
Ind. 29. 

4, Service upon the county sheriff "in charge of the public property of 
said county,'' seems to have been deemed sufficient so far as county property — 
a public square — was concerned, 106 Ind. 29. 

5. A suit to compel specific per f ordnance of a written agreement to open a 
public street in an addition to a town is not the proper proceeding to remove 
an obstruction from said street, 73 Ind. 595. 

Petition for Narrowing Street. 

To the Board of Trustees of the To-vn of .' 

The undersigned, resident freeholders of said town, of the State of In- 
diana, pray that so much of Blair street of said town as lies between Wabash 
avenue and Main street be narrowed from its present width of ninety feet to 
sixtv feet, by vacating thirty feet on the east side thereof, 
bated , 18—. 

Petition for Widening Street. 



To the Board of Trustees of the Tozvn of . 

The undersigned, resident freeholders of said town, of the State of In- 
diana, pray that so much of Blair street of said town as lies between Wabash 
avenue and Main street be widened from its present width of fifty feet to sixty 
feet, by appropriating from the property abutting upon the west side of said 
Blair street a tract of land ten feet in width, extending from said Wabash avenue 
to said Main street. 
Dated , 18—. 

Petition for Straightening. 

To the Board of Trustees of the Tozvn of : 

The undersigned, resident freeholders of said town, of the State of In- 
diana, pray that Blair street, of said town, m.ay be straightened, so as to make 
it a uniform I3' straight street. 
Dated , 18—. 

Petition for Opening Street. 



To the Board of Trustees of the Town of .• 

The undersigned, resident freeholders of said town, of the State of In- 
diana, pray that a street be opened in said town, from John street to Clav street 
of said town, beginning at a point in the north marg.n of John street four hun- 
dred feet east of the northeast corner of said John street and Henry street as 
the center of said proposed street, and running thence due north to said Clay 
street, to be sixty feet in width. 
Dated , 18—. 

Appointment of Commissioners. 

Whereas, twelve resident freeholders of this town of have pre- 
sented a petition, duly signed by them, to this board of trustees, praying that 
a highway be opened from John to Clay streets, in «:aid town, beginning at a 
point in tlie north margin of John street, four hundred feet east of the north- 



§ 3368] TOWNS. [468 

east corner of said John street and Henrv street, as the center of said proposed 
street, running thence due north to said Clay street, to be sixty feet in width; 
and 

Whereas, said board is of the opinion that public convenience requires the 
opening of such proposed street; therefore 

Be it resolved, that A. B., C. D., and E. F., residents of said town, who are 
disinterested freeholders thereof in said matter, be and the same are hereby 
appointed commissioners to appraise and assess the damages and benefits 
accruing to the owner of any land or lot through which it is proposed to con- 
struct such proposed street, and to appraise and assess the damages to any 
building or structure thereon that it will be necessary to appropriate. Said 

commissioners are hereby directed to meet at 10 a. m. on the day of 

, 18 — , at the town, hall of said town for the purpose of making said ap- 
praisement. 

Notice of Appointment. 

To A. B., C. D. and E. F.: 

You are hereby notified that at a regular meeting of the board of trustees 

of the town of , of the State of Indiana, that you were and are hereby 

duly appointed three commissioners to appraise and assess the damages accru- 
ing to the owners of land and lots, and any building or structure thereon 
appropriated, through which it is proposed to construct a street in said town, 
the center of said proposed street beginning at a point four hundred feet east of the 
northeast corner of John and Henry streets, and running thence north to Clay 
street, as will be more fully described in a notice to be hereafter given you. 

Dated , 18—. 

The Board of Trustees of the Town of . 

[Corporate Seal.] By L. X., 

Town Clerk. 

Oath. 

State of Indiana^ County of , .?.?; 

We, A. B., C. D., and E. F., do solemnly swear that we will faithfully 
perform our duties as commissioners in the matter of opening a street in the 

town of , more particularly described in the above notice of appointment. 

So help us God. 





A. 


B., 




C. 


D., 


tQ 


E. 


F. 










L. 


T., 



Subscribed and sworn to before me this day of 

[Notarial Seal.] 

Notary Public. 

[This notice and oath should be filed with the clerk and there remain.] 



Notice to Commissioners. 



You are hereby notified that upon the day of , 18- 

were appointed a commissioner by the board of trustees of the town of 



of the State of Indiana, to assess the benefits and damages accruing to the 
owner of any land or lot, and any building or structure thereon, through which 
it is proposed to construct a street within said town from John to Clay streets, 
more particularly described as follows, to wit: Beginning at a point in the 
north margin of John street, four hundred feet east of the northeast corner of 
said John street and Henry street, as the center of said proposed street, and 
running thence due north to said Clay street, said proposed street to be sixty 
feet in width, and passing through the following lots and parcels of land of said 
town owned by the persons named, to wit: 



469] 



OPENING AND VACATION OF STREETS. 



[§ 3368 



Xame of Owner. 


No. of Lot. 


Addition. 









You are hereby directed to meet at 10 a. m. on the day of , 

iS — , at the town hall of said town for the purpose of making said appraise- 
ment. 

Dated , iS— . 

The Board of Trustees of the Town of . . 



[Corporate Seal. 



By L. X , 

Town Clerk. 



[Duplicates of this notice should be made, and one copy served upon the 
three trustees, leaving it with the last one served. The second one should be 
returned to the town clerk, with an affidavit, acknowledgment or certificate of 
service.] 

Acknowledgment of Services. 

We hereby acknowledge service of the within notice and the receipt 
of a copv thereof. 

Dated , 18—. 

A. B., 
C. D., 
E. F. 

[The notice left with the commissioners should be returned by them with 
their report.] 

Notice to Land-owner. 



To \naming each land-ozvner affected by the frofosed ofening\. 
You are hereby notified that upon the day of 



18- 



at 10 



a. m., A. B., C. D., and E. F., the commissioners appointed for that purpose by 

the board of trustees of the town of , of the State of Indiana, will meet at 

the town hall of said town for the purpose of assessing the damages and benefits 
to any land, lots or buildings and structures thereon appropriated, occasioned 
by the opening of a street over the following route in said town, to wit: Begin- 
ning at a point for the center of said proposed street in the north margin of 
John street, four hundred feet east of the northeast corner of John and Henry 
streets of said town, and running thence north to Clay street, said proposed 
street to be sixty feet in width, through the following described land and lots in 
said towai, respectively owned by the persons named, to wit: 



Name of Owner. 


No. of Lot. 


Addition. 









Dated 



The Board of Trustees of the Town of - 



[Town Seal.] 



Bv L. X., 

Town Clerk. 



§3369] TOWNS. [470 

[The above notice may be served by reading to the person interested, or by 
copy, as designated in the statute. The marshal serves it- If an owner is un- 
known or a non-resident of the county (that is what is meant by the word non- 
resident) the above notice may be pubhshed and the usual affidavit of publica- 
tion secured.] 

Return of Service. 

Served by reading to R. U., etc., and by leaving a certified copy at the 
last and usual place of residence of U, T. with U. R., a person of suitable age; 
X. L. not found. 

Dated , 18—. 

X. Y., 

Town Marshal. 

Sec. 3369. Buty of commissioners. 3. Such commissioners, or 
a majority of them, shall, at the place and time indicated in such 
notice, proceed to an examination of the real estate proposed to 
be appropriated as aforesaid, and shall then and there estimate, 
first, the value of the land or other property to be appropriated 
for such improvement ; second, what real estate, if any, would be 
benefited by the improvement, specifying the same in parcels, with 
the name of the owner if known, and the proportion of benefits 
each owner receives, and the proportion of damages each would 
sustain. They shall view the premises, and receive any evidence 
touching the question before them ; and may, for that purpose, 
administer oaths to witnesses examined in relation thereto. They 
shall report on each of the specifications above indicated, and, 
within ten days thereafter, file the same with the clerk of the 
board of trustees. 

1. Measure of damages, ^ 3170, notes 1 to 4. Description of real estate, 
§ 3 1 71, notes. 

2. If the report is silent as to the value of the right in question, and result- 
ing damages, it will be presumed that the commissioners considered them as 
nothing, 106 Ind. 29. 

Subpoena. 

[See form under § 3169.I 

Claim for Damages. 

[See form under § 3169.] 

Report. 

To the Board of Trustees of the Tov:n of ; 



The undersigned, commissioners appointed to appraise and assess the 
damages and benefits accruing to the owners of any land or lots through which 
It is proposed to open a street from John to Clay streets, of said town, begin- 
ning at a point for the center of said proposed street in the north margin of 
John street four hundred feet east of the northeast corner of John and Henry 

streets, and running thence north to said Clay street, a distance of feet, 

said proposed street to be sixty feet wide, report as follows, to wit: That they 
met at 10 a, m. on the day of — : . 18—, in the town hall of said town, 



47 1] 



OPENING AND VACATION OF STREETS. 



[§ 3370 



pursuant to the notice previously given and return thereon made by the town 
marshal, and proceeded to examine all the real estate that will be affected by 
the opening of said proposed street. That it will be necessary to appropriate the 
following described real estate, situate in said town, owned by the persons 
named, and of the value given, to wit: 



Name of O-wner. 


Description of Land to be Appropriated. 


Value. 









Total value of real estate to be appropriated 



They also report that the following real estate, situate in said town, owned 
by the persons named, will be benefited by the opening of said proposed street, 
in the amounts respectively set opposite each lot or tract of land, viz.: 



Name of Owner. 


Lot. 


Addition. 


Amount of 
Benefits. 











Total amount of benefits 



They further report that the following real estate, situate in said town, 
owned by the persons named, will be damaged by the opening of said proposed 
street, in the amount set opposite each lot or tract of land, viz.: 



Name of Owner. 


Lot. 


Addition. 


Amount of 
Damages. 











Total amount of damages $ 

All of which is respectfully submitted. 

Dated , 18—. 

A. B., 
C. D., 
E. F., 

Commissioners. 

Sec. 3370. Tender of damages. 4. When such report is filed, 
as in the preceding section required, the board of trustees, if it 
accept the terms of the same, shall direct the treasurer of the 
town to tender the owner or owners of such real estate, or their 
heirs or representatives, the damages awarded by such commis- 
sioners, deducting the amount of benefits assessed to such owner 
or owners; or if not found within the town, or the award is not 
accepted, then the sum shall be kept by the treasurer as a special 
deposit, subject to the order of such owner, or his heirs or repre- 
sentatives. 



§337^] TOWNS. [472 

1. Tender is essential, § 3176, tiote i. Es-toppel, ^ 3176, fiote 2. Acceptance, 
§ 3176, note 3. 

2. The money tendered and not accepted, and the amount due non-resi- 
dents of the town, must be separated from the general and special funds of the 
town, and marked for the person entitled to it. In case of a tender and refusal, 
at least, the money is held by the town at the risk of the person entitled to it; 
and if it is stolen, due care having been used to keep it, the loss falls upon the 
person who is entitled to it ; but if embezzled by the treasurer, the town will be 
liable to the person entitled to it, for such treasurer is the agent of the town. 

Order of Tender. 

Ordered that the treasurer of this town tender to M. O. the sum of 

$ , N. P. the sum of $ , in payment of the damages due them by 

reason of the proposed opening of a street from John street to Clay street, and 
if they or either of them refuse to accept the amounts respectively due them, 
said treasurer is ordered to keep the same in a special deposit, subject to the 
order of the person entitled to it, or his heirs or representatives. 

Sec. 3371. Assessment — Collection. 5. If the board of trustees, 
within twenty days after the fiUng of said report, by a vote of a 
majority of the members, determine to make the appropriation of 
real estate for such improvement, it shall cause an assessment-list 
to be made, by transcribing so much of the report, as aforesaid, as 
describes the parcels of real estate to be benefited by the opening 
or improvement, with the name of the owner, if known, and the 
amount of benefits which each would receive, thereby directing 
such amount to be assessed upon such parcelsof real estate respec- 
tively ; which assessment shall be a lien on such real estate. The 
board of trustees may, immediately after making such assessment, 
by suit in any court of competent jurisdiction, in the name of such 
corporation, recover against the owners of such parcels of real estate 
the amount of such assessment; and upon execution against the 
property of said defendant upon such judgment, the same shall be 
sold for cash without regard to valuation or appraisement laws of 
this State. 

Personal judgments may be rendered in these actions to enforce payment of 
the assess'ments. 

Resolution of Acceptance and Appropriation. 

Be it ordained by the board of trustees of the town of , State of 

Indiana, that the report of the three commissioners appointed in the matter of 
opening a street in said town, from John street to Clay street, four hundred feet 

east of Henry street, filed with the clerk of said town on the day of 

, 18—, be and the same is hereby accepted and adopted, as well as the 

terms thereof, and the following land in said town, therein described as neces- 
sary to be appropriated, be and the same is hereby appropriated for the piirpose 
of said street, tOAvit: 



Name of O^vner. 


Description of Land. 







473] OPENING AND VACATION OF STREETS. [§ 337 I 

And said land be, and is hereby dedicated to the use of the public as a public 
street and highway of said town, to be known as Vernon street. It is also 
hereby further ordained and ordered that the following lots and parcels of land, 
described in said report as benefited, be and the same is hereby assessed with 
the amount respectively in which said commissioners have reported that they 
would be benefited by the opening of said street, to wit: 



Xame of Owner. 


Description of Land. 


Amount of benefits. 









And the amounts hereby assessed respectively to each and every lot a-nd 
parcel of land is hereby declared to be a lien on said lot or parcel of land. 



Complaint. 

In the Circuit Court. 

The Town of vs. R S . No. , 

The town of complains of R. S. and says that upon the 

day of , 18 — /twelve resident freeholders of said town presented a written 

petition to the board of trustees of said town to open a street from John street 
to Clay street of said town, beginning at a point, as the center of said proposed 
street, in the north margin of said John street four hundred feet east of the 
northeast corner of said John street and Henry street, and running thence 
north to Clay street. That said board, at a regular meeting thereof, held on 

the • day of , 18 — , being of the opinion that public convenience 

required the opening of said new street, so declared and entered such declara- 
tion of record and appointed three commissioners, residents of said town, who 
were disinterested freeholders thereof, to appraise and assess the damages and 
benefits accruing to the owmer of any land or lot through which it was pro- 
posed to construct said street, and to appraise and assess the value of any build- 
ing or structure on any of such land or lots appropriated. That said commis- 
sioners were duly notified of their appointment, and each took and subscribed 
an oath to faithfully perform their duties as such appraisers, which oath was 
indorsed on the notice of their appointment, and filed with the clerk of said 
town. That said board, through the town clerk, gave said commissioners twenty- 
days' notice of the time and place of their meeting, and of the appraisement to 
be made, a complete description of the premises to be viewed being given in 
said notice; and a like notice was duly given to each of the owners and agents 
of lots or lands upon or through which it was proposed to open and make said 
street. That said commissioners, at the time and place indicated in said notice, 
proceeded to an examination of the real estate proposed to be appropriated, as 
well as both that which would be benefited by the proposed improvement and 
that w^hich would be damaged. That they estimated the value of the land to be 
appropriated for such improvement, specifying the same in parcels with the name 
of the owner as well as both the proportion of benefits each owner of land afiected 
would receive and the proportion of damages each would sustain. That they on 

the day of ,18 — , filed a written report, dulj^ signed by them, of their 

proceedings in said matter showing in detail their doings in said premises, as 
aforesaid stated, which report and the terms thereof was accepted by said board 
at a regular meeting thereof, within tAventy days after the same was filed ; and 
the land therein described as necessary to be appropriated for said street was 
appropriated and dedicated by said board to the uses and purposes of a street, 
all of which proceedings were duly entered of record in the records of said 
town. That said board, at the same time caused an assessment list to be made, 
a copy of which iS filed herewith, marked" Exhibit A," and made a part hereof, 
by transcribing so much of said report as described the parcels and lots of real 
estate to be benefited by the opening of said street, with the name of the owner 



§3372] TOWNS. [474 

and the amount of benefits to which each owner was entitled, which assess- 
ment was dulj entered of record in the records of said town. That among the 
lots and parcels of land thus assessed with benefits in said report of said com- 
missioners, and as appears in said exhibit, was lot 16 of Blair's addition to said 
town, which was assessed with $76.23 of benefits, and which lot then and now was 
and is owned by said defendant. That before the bringing of this action, and 
after the necessary part of said report had been transcribed as aforesaid, the 
plantiff, through and by its agents and officers demanded of said defendant the 
payment of said sum of $76.23, that being the amount due thereon, no damages 
having been assessed to said lot, which amount, nor any part thereof, said 
defendant failed and neglected to pay ; and there is now due and unpaid thereon 
the sum of $76,23, with interest from the date of said demand; for which the 
plaintiff demands judgment against said defendant, the foreclosure of the lien 
on said lot by reasqn of the proceedings aforesaid, and an order that said lot 
be sold to satisfy the amount of said judgment. 

H I , 

Attorney for Plaintiff. 

Sec. 3372. Action on report — Appeal. 6. The board of trustees 
shall, within twenty days from the fihng of said report, either ac- 
cept or reject the terms of the same. And any owner of land or 
representative thereof, aggrieved by such report, may appeal there- 
from at any time, within thirty days after the filing thereof, to any 
court having jurisdiction of the same, upon filing the usual bond 
with the clerk of said town for the payment of costs. But no 
such appeal shall prevent any such town from proceeding with 
said appropriation and improvement as if no appeal had been 
taken. No other question shall be determined than the regularity 
of the proceeding in the suit and the amount of damages sus- 
tained. 

1. I?i/uncfwn. § 3173, no/e. Status of report before acceptance, §3174, ?iote 
I. Effect of acceptance and appropriation, § 3174, note 3. 6" ?(^czV«cj of resolu- 
tion of appropriation, § 3174, note 4. 

2. The board must act upon the report within twenty days and make an 
entry of their action. Such action can not be shown \>y parol ^ even though no 
entry was ever made of the board's action, 124 Ind. 86. 

3. On appeal the transcript stands as a complaint, and maj' be demurred to 
by the person appealing, who stands upon the record as a defendant. If there 
is a substantial error in the record the demurrer should be sustained, 106 Ind. 
29. 

4. Ansrver of appellant or defendant, § 3180, 7iote 2. Validity as to third 
person, § 3180, note 3. Proof of damages, \ 318O) note 4. Question to be tried, 
§ 3180, note 5. Appeal is to circuit court, 73 Ind. i. 

Appeal Bond. 

[See form under § 3180.] 

Notice of Appeal. 

[This may be an ordinary summons.] 

Transcript on Appeal. 

Be it remembered that upon the day of , 18 — \ the follow- 
ing petition was presented to the board of trustees of the town of , of 

the State of Indiana, viz.: 

{Set out petition.\ 



475] OPENING AND VACATION OF STREETS. [§ 33/3 

On the day of , iS — , the following proceedings were had and 

held bv said board, at a regular meeting thereof, and duly entered of record, 
viz.: 

[Set out resolutio7i a;pfointing three commissioners. ^ 
And thereupon the following notices were given to said A. B., C. D., and 
E. F., viz.: 

\Set otit notice of appoint ment.\ 
And thereupon the following notice of the proposed improvement was given 
to said commissioners, viz.: 

\Set out notice of improvement proposed.] 
And thereupon the following notice was issued to the marshal of said town 
and returned with the following return of service indorsed thereon, viz.: 
[Set out notice to land-owners^ and the marshaPs return of service. ^^ 
And thereupon the following notice and affidavit of publication was given, 
and a copy thereof filed in the clerk's office of said town, viz.: 
{Set out notice to non-reside7its by publication., %vith affidavit of publication. \ 

Be it further remembered that upon the day of , i8— , said 

commissioners filed the following report of their doings and proceedings in 
said premises, viz.: 

{Set out report in full.l 

And thereupon, on the • day of , i8 — , at a regular meeting of 

said board, the following proceedings were had and held, and entered of record, 
with reference to said report, viz.: 

[Set out the resolution of acceptance.'] 

And thereupon, on the day of , i8 — , R. U. filed with me, 

which is herewith transmitted, an appeal bond in the matter of opening said 

street, praying for an appeal to the circuit court. 

I, X. Y., clerk of the town of , of the State of Indiana, hereby certify 

that the above and foregoing is a full, true, and complete transcript of all the 
proceedings had and held by the board of trustees of said town and by the com- 
missioners appointed in the above matter, as appears from the records and files 
of said town; and is a full, true, and complete copy of all papers filed in vay 
office in the matter of opening the street therein referred to. 

In testimony whereof, I have hereunto set my hand and the corporate seal 

of said town this day of , i8 — . 

[Corporate Seal.] X. Y., 

Clerk of the Town of . 



Sec. 3373. Infants and insane. 7. When the owner of any 
such land or building, appropriated as aforesaid, shall be an infant 
or of unsound mind, no proceeding shall be had affecting the rights 
of such persons until a guardian therefor shall be appointed by the 
court having probate jurisdiction, and such guardian shall have 
given security to the satisfaction of such court for the faithful per- 
formance of the trust; but any proceeding affecting such rights 
shall only be void to that extent. 

The commissioners can report to the circuit court, if they choose to do so, 
that no guardian has been appointed for an interested infant or insane person, 
using the form under § 3173. In such an instance the report must necessarily 
be delayed until such guardian has been appointed, and then notice can be 
served upon him the same as if he had been appointed and made a party to the 
proceedings in the first instance. The commissioners must necessarily have 
the power to verbally direct the service on the guardian of the notice, and set 
a day for a hearing. Such guardian must be given the same length of time as 
if he were first made a partj^ This will necessarily delay the report ; but the 
time within which it is prescribed that a report must be filed is only directory 
and not mandatory; and the delay will not aftect its validity. All the steps 
taken \yith reference to an infant or insane person should be set out in the 
report, accompanied by the notice served on the guardian. 



§§3374,3375] towns. [476 

[i R. S. 1S52, p, 493. Approved May 20, 1S52, and in force ]May 6, 1S53.] 

Sec. 3374. Record of plats, i. Any person who may hereafter 
lay off any town, or addition thereto, in this State, shall, previous 
to the sale of any lots in such town, cause to be recorded in the 
recorder's office of the county wherein the same may lie, a correct 
copy of the plat of said town, with the public grounds, streets, 
lanes, and alleys, with their respective widths properly marked, 
the lots regularly numbered, and the size of the lots marked by 
reference to the plat. 

1. See § 6392. In order to show the dedication of private property to the 
public use by user, there must have been a user by the public adverse and ex- 
clusive to that of the owner, 30 Ind. 389; 127 Ind. 130. See § 3161, note 13. 

2. The making and dedication of streets, lanes and alleys on 2i io\,n J^lat 
gives to the public only an easement therein; the fee-simple remams in the 
proprietor, 48 Ind. 178 ; and this is true of that part of the town of Indianapolis 
laid out by the State, 74 Ind. 29. The tvife^s inchoate interest in the streets and 
alleys is barred by the plat, even though she does not sign it, 85 Ind. 104. 

3. The above section does not apply to oiit-lots in a congressional section 
of land, 47 Ind. 274. 

4. A plat not signed and achnoxvledged as is required by law is not entitled 
to record; and if it be recorded the record is a nullity, 47 Ind. 274. An explana- 
tory note upon the plat, which is inconsistent with all other things appearing 
by the plat, including courses and distances marked thereon, will not be held to 
control the other facts thus appearing when a question of a location of a lot is 
in dispute, 100 Ind. 463. 

5. The plat of an addition to a town must now be approved by the board of 
town trustees before it can be recorded, §3229^. But this does not apply to the 
original plat of a town ; but if territory that had never been incorporated as a 
town was laid out in lots, the plat of it would not have to be submitted to the 
board. ' 

Sec. 3375. Donation by plat. 2. Every donation or grant to 
the public, or to any individual, religious society, corporation, or 
body politic, noted as such on the plat of the town wherein such 
donation or grant may have been made, shall be considered a gen- 
eral warranty to the said donee or grantee for the purposes in- 
tended by the donor or grantor. 

1. The intention of the proprietor of the plat in regard to the meaning of 
the marks on reser^^ations noted on the plat is in general a question of fact and 
not of law, 82 Ind. 321 ; 123 Ind.. 196. Merely marking a square as " Tipton 
Square" will not be sufficient evidence of a dedication to the public, 8 Ind. 378. 

2. Where the owner of land made and recorded a plat of it, and filed with the 
plat a written explanation stating that it was a plat of certain land " in blocks 
or squares, by the drawing of lines across said ground, where the center line of 
the street will come when the same is platted to correspond with the com- 
missioner's plat and the streets in the plat, it being the intention of said com- 
missioners to plat said ground, or in the event of their being sold by him, to 
provide for their being platted to correspond with the contiguous ground 
already platted," it was held that there was no dedication of the land between 
the blocks lor streets, 125 Ind. i. 

3. Dedication can be made, although there is no grantee /;/ esse at the time, 
capable of taking the fee, i O. S. 478; but a dedication must be to a public use ; 
It can not be made to a railroad company, 19 O. S. 514. Xo particular form is 
necessary, so long as the intention of the donor is demonstrated to dedicate, and 
the public to accept, 7 O. (pt. i) 218. "Wife is not required to sign, to be barred 
of dower, 8 N. Y. no; 3 O. 24. The recognition of a street by the owner of a 



477] PLATS. [g§ 3376, 3377 

lot ^vili operate as a dedication of all the property he iriaj own within the lines 
of the street to tlie next intersecting- street on each side, i Hill. 189. And one 
who sells lots upon a " contemplated street" is bound to keep it open to its full 
dimensions through his own lands until it reaches some other street or public 
way, 10 Bull. 194. 

4. Dedication of a street by plat without acknowledgment can, as against 
the corporation, be revoked at any time before acceptance, 26 O. S. 94; and a 
deed of general warranty will constitute a revocation, Ibid; but if lots have 
been sold on such plat, as against the vendee, the vendor, or one claiming under 
him, can not refuse the unobstructed use of such street, i Disney, 401. 

5. An owner, who in a deed of a lot refers to and calls for a street laid out 
bv a platting commission, dedicates not only the ground in front of the lot sold, 
but all the land owned bv him within the lines of the street at other points, 17 
Bull. 166. 

[iSSi, p. 56. Approved and in force March 3, 18S1.] 

Sec. 3376. Plat, how acknowledged. 3. The person desiring 
to lay off such lots, before offering such plat for record, shall ac- 
knowledge the same before some officer authorized by law to take 
and certify the acknowledgment of deeds in. the proper county; 
a certificate of which acknowledgment shall be, by the officer 
taking the same, annexed to such plat or other paper, and recorded 
therewith. 

Unless properly signed and acknowledged a plat is not entitled to record; 
and if recorded the record is a nullity, 47 Ind. 274; 25 Ind. 531. The wife need 
not sign nor acknowledge its execution, 85 Ind, 104. 

Dedication and Acknowledgment. 

State of Indiana^ County of , .<r6'. 

I, A. B., do hereby certify that the annexed map is a true plat of an 

addition to the town of , of the State of Indiana, to be known as Blair's 

addition ; that the lots are numbered as designated by numbers on said map ; 
that the streets are all of the width of sixty feet, and the alleys of the width of 
ten feet; 'and that I hereby dedicate so much of the streets and alleys as is 
therein designated to the use of the public for the use and purposes of public 
highways. 

In testimony whereof, I hereunto set my hand and seal this day of 

, 18—. 

A. B. 

Personally appeared before me, a notary public in and for the county and 
State aforesaid, the above named A. B., and acknowledged the execution of the 
above and foregoing plat. 

In testimony whereof, I hereunto set my hand and notarial seal this 

day of , 18 — . 

[Notary Seal.] X. L., 

Notary Public. 



[i R. S. 1852, p. 493. Approved May 20, 1852, and in force May 6, 18 



:)o-J 



Sec. 3377. Penalty. 4. Every person who may lay off any town, 
or any addition to any town, in this State, and fail to comply with 
the requisitions of this act, shall forfeit and pay, for the use of 
said town, for every month, a sum not exceeding one hundred 
dollars nor less than five dollars, to be recovered in the name of 
the treasurer of the county. 



§§ 3378, 3379] towns. [478 

Sec. 3378. Imperfect plat. 5. Where any town plat, heretofore 
or hereafter to be recorded, does not clearly describe the size of 
the lots, streets, alleys, and courses of the lines of said town, and 
where donations have been given or intended to be given, either 
to the public or to individuals, or to any religious society, and it 
has been neglected to insert the same on said plat, any of the pro- 
prietors of such town are hereby required to make out such other 
description as will more clearly explain the true intent; which 
shall be acknowledged, certified, and recorded as required in this 
act. 

[1S57, p. 126. Approved February 26, 1857, and in force August 24, 1857.] 

Sec. 3379. Vacation. 6. Whenever any person or corporation in- 
terested in any incorporated town, or in any real estate, in this 
State, laid out in streets and lots as a town, may desire to vacate 
any lot, street, alley, common, public square, or part thereof, in 
such town or plat of town, such person or corporation may petition 
the board of county commissioners of the proper county, giving a 
distinct description of the property to be vacated and the name of 
the persons to be affected thereby ; which petition shall be filed 
with the county auditor thirty days previous to the sitting of such 
board ; and notice of the pendency of said petition shall be given, 
for the same space of time, in a public newspaper printed in said 
county, if any there be, and by written notices thereof set up in 
three public places near the lots, streets, alleys, common, or square 
proposed to be vacated. 

NECESSARY STEPS TO BE TAKEN. 

The following are the steps necessary to be taken and the order in which 
they follow each other : 

1. Petition to the board of count}^ commissioners praj-ing the vacation of 
a certain named street or portion thereof, containing names of the persons 
affected thereby, signed by the person or corporation desiring the vacation, 
§ 3379. 

2. Notice by the auditor for thirty days of the pendency of the proceedings, 
§ 3379- 

3. Order of vacation, if there is no opposition ; if there is opposition, con- 
tinuance to the next term, and then order of vacation if the objector consent or 
two-thirds of the real estate holders of the town petition for it, 6 3380. 

4. Obtaining consent of the land-owners abutting thereon before a justice 
of the peace, § 3382. 

NOTE. 

In the opinion of the writer this section and the four following sections are 
repealed by § 3367, giving the board of town trustees " exclusive power over the 
streets, alleys, highways and bridges within the corporate limits " of the town, 
so far as it appertains to streets and alleys. Forms are, however, added for the 
use of those who desire to pursue their directions. 

Petition. 



To the Board of Commissioners of the Cotuity of 



The undersigned, severally the owners of real estate in the town of 
-, of the State of Indiana, pray that so much of North street of said town 



479] VACATION OF PLATS OR TOWN. [§ 3380 

as lies between Vernon street and the corporate limits of said town on the west 
side thereof be vacated. They state that the following named persons and real 
estate situate in said town will be affected by said proposed vacation, viz.: 



[ 

Name of Owner. 


Lot. 


Addition. 


1 







As a reason for the vacation of that part of said North street, they say that 
the same is of no public benefit, and is totally unused hy the public. 

A. B,,etc. 

Notice. 

Notice is hereby given that A. B. and others, the owners of real estate 

situate in the town of , county of , and State of Indiana, filed a 

petition on the , day of , 18 — , in the oflSce of the auditor of said 

county, praying that so much of North street of said town as lies between Ver- 
non street and the corporate limits of the west side of said town be vacated. 
Said petition will come up for a hearing before said board of commissioners at 
their next meeting, held in the auditor's office of said county on the first Mon- 
day of , 18 — , being the day of , 18 — . 

"Dated at , Ind., this dav of , 18 — . 

X.L., 
Auditor of the County of . 

[i R. S. 1852, p. 493. Approved May 20, 1852, and in force May 6, 1853.] 

Sec. 3380. Proceedings concerning vacation. 7. If no opposi- 
tion be made to such petition, the board of county commissioners 
may vacate the same, with such restrictions as they may deem for 
the pubHc good; but if opposition be made, such appHcation shall 
be continued until the next term of the board, when, if the ob- 
jector consent to such vacation, or if two-thirds of all the real 
estate holders of the town petition therefor, the board may grant 
the prayer of the petition. 

Petition to Vacate. 



To the Board of Commissioners of the County of : 

The undersigned, two-thirds of all the real estate holders of the town 

of , of the said county and the State of Indiana, pray that you will vacate 

so much of North street of said town as lies between Vernon street and the 
corporate limits of said town on the west side thereof. 
[Signed.] 



Remonstrance. 

To the Board of Commissioners of the Coujity of .• 

The undersigned, owners of real estate in the town of . of said 

county and the State of Indiana, respectfully pray that you do not vacate so 
much of North street of said town as lies between Vernon street and the cor- 
porate limits of said town on the west side thereof, as you have been requested 
to do. 

[Signed.] 



§§ 338 1 > 3382] TOWNS. [480 

Order of Vacation. 

Whereas, A. B. and others, owners of real estate situate in the town 

ot , county of , and State of Indiana, on the day of , 

18 — , filed a petition in the auditor's office of this county, and presented the 
same to this board, praying that so much of North street of said town as lies 
between Vernon street and the corporate limits of said town on the west side 
thereof be vacated ; and 

Whereas, thirty days' notice of the pendency of said petition before this 
board Avas given by the auditor of this county by publication in the Argus- 
Ne-cus, a newspaper printed in said county, and by written notices thereof set 
up in three public places near that part of said North street proposed to be 
vacated; and 

Whereas, notwithstanding objections made to said proposed vacation, two- 
thirds of all the real estate holders of said town have petitioned this board to 
vacate said part of said North street; 

[or, Whereas, L. X., at the last session of this board, objected to the vaca- 
tion of said part of said North street, and for that reason the same was con- 
tinued until the present term ; and now said L. X, gives his consent to said 
vacation] ; therefore 

So much of said North street as lies between said Vernon street and the 
west corporate limits of said towm, as aforesaid described, be and the same is 
hereby ordered to be vacated, and the right of the public to use the same for a 
street is hereby revoked and annulled; and said vacation shall take eftect when- 
ever the persons owning property immediately adjoining that part of said 
North street to be vacated shall file their written consent to said vacation, duly 
acknowledged, with this board. 

Sec. 3381. Title on vacation. 8. The part so vacated, if it be 
a lot, shall vest in him who may have the title thereof according 
to law; and if the same be a street or alley, the same shall be at- 
tached to the ground bordering on such street or alley, and all title 
thereto shall vest in the persons owning the property on each side 
thereof, in equal proportions, according to the length or breadth 
of such ground, as the same may border on such street or alley. 
And whenever a public square shall be vacated, the property there- 
of shall vest in the board of county commissioners, for the use of 
the county. 

Sec. 3382. Ifo vacation, unless owners consent 9. But no such 
vacation of a street or alley shall take place, unless the consent of 
the persons owning the property immediately adjoining thereto be 
obtained therefor in writing ; which consent shall be acknowledged 
before some justice of the peace, and filed with said board. 

Consent. 
To the Board of Commissioners of the County of ; 



The undersigned, owners of all the property immediately adjoining up- 
on that part of North street, of the town of , of the county of , and 

State of Indiana, extending from Vernon street to the west corporate limits 
thereof, hereby consent that the same may be vacated and abandoned by the 
public. [Signed.] 

A. B., etc. 
State of Ijidiana^ County of , ^.v. 

Personally appeared before me, a justice of the peace in and for said 
county and State, the above named A. B., etc., and acknowledged the execution 
of the above and foregoing instrument. 



481] VACATION OF PLATS OR TOWN. [§ 3383 

In testimony whereof, I have hereunto set niv hand and seal this day 

of , iS— ." 

R. U., 

Justice of the Peace. 

Order-Book Entry of Filing Consent. 

Comes now A. B., etc., and file their written consent to the vacation 

of so much of North street, of the town of , of the county of , and 

State of Indiana, as lies between Vernon street of said town and the west corpo- 
rate limits thereof, which consent is duly acknowledged before a justice of the 
peace of this county ; and said persons so signing said written consent being all 
the persons whose lands immediately adjoin said part of said North street, the 
same is hereby declared vacated in accordance with the order of this board this 

day entered of record [or, entered of record on the day of , 18 — j, 

and said order is declared to be in full force and effect. 

Sec. 3383. Additions, how vacated. lo. If any person shall lay 
off an addition to any town which does not improve, and shall be 
the legal owner of all the lots contained in such addition, such per- 
son, or any other person who shall become the legal owner there- 
of, may have such addition, or any part thereof, vacated, by apply- 
ing to the board of commissioners of the proper county, after notice 
as hereinbefore provided, and proof of ownership of such lots. 



Petition- 

To the Board of Commissioners of the County of -: 

The undersigned says that upon the day of , 18 — , he, be- 
ing then the owner of the land, platted and laid off an addition, known and called 
Blair's addition, to the town of , of the county of , and State of Indi- 
ana, which plat was duly acknowledged and recorded in the recorder's office of 

said county in deed record No. , on pages . He says that he is still 

the legal owner of all of said addition, no other person having any interest 
therein; and the same does not improve said town, because a strip bf unplatted 
land forty rods wide entervenes between it and the platted and occupied part of 
said town. He therefore praj^s that said addition be vacated. 

Dated , 18—. A. B, 



Notice. 

Notice is hereby given that on the day of , 18 — , A. B., 

claiming to be the legal owner of the addition therein described, filed a petition 

in the auditor's office of the county of , and State of Indiana, praying that 

Blair's addition to the town of , of said county, laid out and duly "recorded 

in the recorder's office of said county on the day of , 18 — , in deed 

record No. , on pages , be vacated. Notice is therefore given that 

the matter will come up for hearing at the next term, beginning on the first 
Monday of , on the day of , 18 — , of the board of commis- 
sioners of said county, for a hearing, which board will sit in the auditor's office 
of said county. 

X. L., 

Auditor of the County of . 

Order of Vacation. 

Whereas, A. B., on the day of , iS — , filed the following 

written petition in the auditor's office of this county, viz.: \Sct out the pctition\\ 
and 



§§ 3384, 33^5] TOWNS. [482 

Whereas, the auditor of this county caused the following notice to be pub- 
lished in the Argus- Nexvs^ a paper printed in this county, thirty days previous 
to the sitting of this board at the present term, and caused the same notice tJ 
be set up in three public places near said addition, to wit: [Set out the notice, 
-vith proof of fichlicatio7i\\ therefore, 

It is hereby ordered that said Blair's addition to said town of be and 

the same is hereby vacated. 

Sec. 3384. Change of name. 11. Such board may change the 
name of any town upon a petition therefor of a majority of the 
qualified electors of such town ; and in case any such change is 
made, notice thereof shall be given by publication, three weeks 
successively in a newspaper of the county, if any, and, if not, by 
written or printed notices posted up in three of the most public 
places of such town; and a certified copy of the order of such 
change shall be recorded in the recorder's office of the county. 



Petition. 

To the Board of Commissioners of the County of ; 

The undersigned, a majoritj- of the qualified electors of the town of 

, of the county of , and State of Indiana, hereby request that the 

name of said town be changed to . 



Order Changing Name. 

Whereas, A. B. and others have petitioned this board to change the 

name of the town of , of the county of , and State of Indiana, to 

; and 

Whereas, said petitioners constitute a majority of all the qualified electors of 
said town; therefore 

It is ordered that the name of said town of shall from and after this 

date be ■ , and said town shall be so known and designated. 



Notice. 

Notice is hereby given that on the day of , i8 — , upon the 

petition of a majority of all of the qualified electors of the town of , of 

the county of , and State of Indiana, the board of commissioners of said 

county changed the name of said town of to , in accordance with 

the prayer of said petition. 

Dated ,18—. X. L., 

Auditor of the County of . 

[1879, P- 172- Approved March 31, 1879, and in force May 31, 1879.] 

Sec. 3385. Vacation of unused public square, i. Where, in any 
township having a population of less than two thousand according 
to the census of the United States of America, taken in the year 
of our Lord, eighteen hundred and seventy, any tract of land has 
been platted with the view of incorporating said tract of land as a 
town ; and where, with the view of locating the county-seat of any 
county upon said tract of land in said township, a public square 
has been donated and made part of the plat of the said tract of 
land, with the idea of locating the county court-house upon said 



483] VACATION OF PLATS OR TOWN. [§§ 3386, 3387 

public square ; and when for the period of sixty years, said public 
square has never been used for the purpose of building a court- 
house therein ; and when, for the period of sixty years, the said 
tract of land so platted has become an incorporated town; and 
when, for the period of sixty years, no county-seat of any county 
has been located in the said township, nor upon any tract or plat 
of land therein, — then, and in that case, on application of persons 
owning ground adjacent to the said public square to the judge of 
the circuit court of the county where the same is located, and upon 
their showing the state of facts set out in the foregoing portion of 
this act, the judge of the said court shall order the said public 
square to be vacated, and the lot or tract of land composing it 
shall vest in those whose deeds show that they are entitled to said 
lots or tracts of land according to the present records of the county 
in which such township is located. 

[1873 S., p. 12. Took effect without the approval of the Governor December 

27, 1872.] 

Sec. 3386. Public square — School, i. Any town in this State, 
laid off, platted, and recorded, with streets, lanes, alleys, lots, and 
a public square with no other public use expressed on such plat 
than '* public square" by the donor or grantor; and when the cit- 
izens of such town, by common consent of people, and the express 
consent of the grantor, have taken possession of said public square 
for educational purposes, and erected thereon lasting and valuable 
school-buildings ; and the citizens being desirous of retaining and 
occupying the same for educational purposes, and that the same 
shall be dedicated to such use, — may, by five or more freehold 
citizens of such town (or, if an incorporated town, by her corpo- 
ration) petition the board of county commissioners for the proper 
county, giving a distinct description of the public square to be 
granted to the public for educational purposes; which petition 
shall be filed with the county auditor thirty days previous to the 
sitting of such board; and notice of the pendency of said petition 
shall be given for the same space of time in a public newspaper 
printed in said county, if any there be, and by printed or written 
notices thereof, set up in three public places near the public square 
mentioned in the petition. 

Sec. 3387. Action by county board. 2. If no opposition be 
made to such petition, the board of county commissioners ma}' 
grant the prayer of petitioner or petitioners, as the case may be, 
and declare the same dedicated for educational purposes, in ac- 
cordance with the petition, and to have the same effect as if said 
public square had been so marked and dedicated upon the original 
plat of such town. But if opposition be made before the board 
of county commissioners before final action had, such application 
shall be continued until the next term of the board, when, if the 



§ 3388] TOWNS. [484 

objector consent to such petition, or if two-thirds of all the real 
estate holders of the town petition therefor, the board shall grant 
the prayer of the petition. 



ARTICLE 6— ANNEXATION OF TERRITORY. 



SEC. 



33SS. Of lots and out-lots. 3390- Duty cf county board. 

33S9. Of lands not platted. 33,9^- Lost plat. 

[1857, p. 73. Approved and in force March 5, 1857.] 

Sec. 3388. Of lots and out-lots. 48. When two-thirds of the 
OAvners of a tier of out-lots adjoining an incorporated town shall 
sign a petition asking that the corporate limits of said town be ex- 
tended so as to include said out-lots, the board of trustees of said 
town shall cause said petition to be recorded, and make an order 
that said tier of out-lots shall thereafter be included in and consti- 
tute a part of said corporation. Whenever there shall be lots laid 
off and platted adjoining to or within such town, and a record of 
the same is made in the recorder's office of the proper county, the 
board of trustees may, by a resolution, extend the boundary of 
such town so as to include such lots, whether improved or not ; 
and the lots thus annexed shall thereafter form a part of such 
town, and be within the jurisdiction of the same. A copy of such 
resolution, with plat or map of survey defining the metes and 
boundaries of such addition, shall be immediately filed and recorded 
in the office of the recorder aforesaid, and said tier of out-lots and 
said lots annexed, as last specified, shall be included in and con- 
stitute a part of said corporation, and the inhabitants residing 
thereon, and owners thereof, shall be subject to all the laws and 
regulations, and entitled to all the privileges, of said corporation. 

1. This section authorizes the annexation of contiguous platted territory, 
20 Ind. 272; 72 Ind. i6i. Lots laid out or out-lots in a congressional section of 
land are not tOAvn lots or additions thereto. They are not entitled to record; 
and the attempt of the board of town trustees to annex them is a nullity, 47 
Ind. 274. See § 3165, notes 3, 5 ajid S. 

2. Motive of town in annexing territory, § 3195, note 2. No7i-co7itiguous 
territory, § 3195, note 2. Injunctio7i^ § 3i95> notes 2 a?td 6. ^uo 7varra?ito, § 3195, 
?iote 4. Eminent domain^ § 3195? '^^^<? 7- 

Petition. 

To the Board of Trustees of the Tozvn of / 

The undersigned hereby state that they are two-thirds of the owners of 
the following tier of out-lots adjoining said town of , of the State of In- 
diana, to Avit: Beginning in the center of Main street of said town where it 
ends at the east corporate limits thereof, running thence east sixty rods; thence 
south forty rods, and thence west sixty rods, to said east boundary line. And 
they ask that the corporate limits and jurisdiction of said town be extended so 
as to include said out-lots. 

[Signed.] 



48 5] ANNEXATION OF TERRITORY. [§ 3389 

Journal Entry. 

Whereas, A. B. and others have presented the following petition to this 
board, to wit: \Sct ont the fetitioji literall\'\\ and 

Whereas, this board finds that the statements contained in said petition are 
true; therefore 

Be it resolved by the board of trustees of the town of ■ that the cor- 
porate limits and the jurisdiction of said town be and thej are hereby extended 
so as to include said tier of out-lots, to wit: Beginning in the center of Main 
street of said town, where it crosses the eastern boundary line thereof, running 
thence east sixty rods, thence south forty rods, and thence west sixty rods to 
said east boundary line. 

Resolution Extending Boundaries without Petition, 

Whereas, the following described territory hereinafter described, ad- 
joining this town of , of the county of , and State of Indiana, has 

been laid off in lots and been platted, and a record of the same has been made 
in the recorder's office of said county ; therefore 

Be it resolved by the board of trustees of said town of that the cor- 
porate limits of said town be and the same are hereby extended over said terri- 
tory as follows, to wit: {Describe the Ihie, beginning rvith the freseiit corporate 
limits.] And the territory enclosed within said boundaries be and the same is 
hereby annexed to and shall be and form a part of said town ; and the jurisdic- 
tion of said town be and is hereby extended over the same. The clerk of this 
town is hereby directed to file a certified copy of this resolution, accompanied 
by the map of said territory now before this board, in the office of the recorder 
of said county. 

[i R. S. 1852, p. 482. Approved June 11, 1852, and in force May 6, 1853.] 

Sec. 3389. Of lands not platted. 51. When any town shall 
desire to annex contiguous territory thereto, not platted or re- 
corded, the trustees shall present to the board of county commis- 
sioners a petition setting forth the reasons for such annexation, 
and shall accompany the same with a map or plat accurately 
describing, by metes and bounds, the territory proposed to be 
attached; which shall be verified by affidavit. Such trustees shall 
give thirty days' notice, by publication in a newspaper printed in 
such town, if any; otherwise, in the county or, if none, then by 
posting up such notice in five or more public places within the 
corporation. A copy of such notice shall be served on the owner 
or owners of such territory, if known and residents of the county. 

1. This section is not void for uncertainty or inconsistency with other pro- 
visions of law ; and under it the county board, upon petition, may order the 
annexation of any territory adjacent to the town, 20 Ind. 272, § 3196, note i. 

2. The reasons for the annexation should be set forth in the petition, 20 
Ind. 272, § 3196, note 2. 

3. It is not necessary that the notice of the intended application contain 
the names of all the holders of lands intended to be embraced in such annexa- 
tion if the territory is sufficiently described by metes and bounds, iS Ind. 203; 
20 Ind. 272 ; 91 Ind. 541. 

4. The county commissioners have no jurisdiction to annex platted terri- 
tory; but in a complaint for an injunction to restrain the collection of town 
taxes levied upon land annexed to the town, if it show that the annexation was 
made by order of the board, and that the property was laid oft" into lots, and 
does not show that the officers of the town did not also adopt a resolution 
annexing the territory, it is bad- The presumption is in favor of the legality 



§§ 3390. 339i] TOWNS. [486 

of the annexation; and the officers of the town maj have adopted both reme- 
dies. An averment that the town officers had not adopted a resolution prior to 
the petition to the board is not sufficient to show that none was adopted prior 
to the assessment of the alleged tax, 72 Ind. 161, § 3196, note 4. 

5. T\vQ proceedings oi the board, if jurisdiction was acquired, can not be ques- 
tioned collaterally ^()\ Ind. 541. \i \.h.Q' petition contains enough to showthat 
the subject-matter is within the jurisdiction,, its sufficiency in other respects 
can not'be questioned collaterally, nor can the formality of the proceedings of 
the trustees of the town, 91 Ind. 541. Personal notice served on the known 
residents of the county whose lands it is sought to annex is, as to them, neces- 
sary to give jurisdiction, and a failure to do so renders the proceedings void 
upon collateral attack, 91 Ind. 541. If several owners of land unite in .a com- 
plaint to enjoin an incorporated town from collecting taxes upon their lands, 
upon the ground that no notice at all had been given, there can be no separate 
decree in favor of one of the plaintiffs, 91 Ind. 541. Whether territory is or is 
not contiguous to the corporate limits is a question of fact for the decision of 
the board of commissioners and their decision is final unless appealed from, 
91 Ind. 541, § 3196, notes 3 and a^. 

Plat^ § 3196, note 5 ; survey^ § 3196, note 5 ; presentation of petition^ § 3196, 
note 5 , petition, § 3196, note 6; notice, § 3196, note 7 ; acquiescence, § 3196, note 8. 

Forms. 

[Under § 3196, forms for a city have been prepared, Avhich can be modified 
for a town. The president of the board of trustees can be substituted for the 
mayor.] 

Sec. 3390. Duty of county board. 52. The board of county 
commissioners, upon the reception of such petition, shall consider 
the same, and shall hear the testimony offered for or against such 
annexation; and if, after inspection of the map, and, the testimony 
being heard, such board is of the opinion that the prayer of such 
petition should be granted, it shall cause an entry to be made on 
the order-book, specifying the territory annexed, with the bounda- 
ries thereof according to the survey; which entry, or an attested 
copy thereof, shall be conclusive evidence, in all courts, of such 
annexation. 

Duty of board of commissioners to act, § 3197, note i ; judicial notice, § 3197, 
note 2. Board of commissioners can act only at a regular meeting, § 3197, note 
.4. Appeal lies, § 3197, note 5. School-house annexed, § 3i97> note 6. Taxation^ 
h 319?) iiote 7. Illegal taxes, § 3197, note 8. Agricultural lands, § 3197, 7iote 9. 

Order-Book Entry. 
[See form under § 3197, which can be modified,] 

[1869 S., p. 33. Approved and in force April 27, 1869.] 

Sec, 3391. Lost plat. ii. When the original survey and plat of 
any incorporated town of this State have been, or may hereafter be, 
lost or destroyed, the board of trustees of such town may order a 
survey and plat of said town to be made. And when such survey 
and plat is made, and adopted by a majority of said board of trus- 
tees, the same shall be presented to the board of commissioners of 
said county, with an affidavit that the original survey and plat are 



48/] SEWERS. [§ 3392 

lost ; whereupon the said board of commissioners shall order the 
same to be recorded by the recorder of said county as the survey 
and plat of such town. 

Resolution. 

Whereas, the original survey and plat of this town has been lost [or, 
destroyed]; and 

Whereas, the town civil engineer, pursuant to an order of this board, has 
made a survev and plat of this town; therefore 

Be it resolved by the board of trustees of said town of that said sur- 
vey and plat be and the same is hereby adopted by said board as the survey 
and plat'of said town; and the town clerk is hereby ordered to present said 

survey and plat to the board of commissioners of the county of , and 

State of Indiana, with an affidavit that the original survey and plat is lost [or, 
destroyed]. • 

Affidavit. 

State of Indiana _ County of , ss. 

X. L., upon his oath, says that he is the clerk of the town of , 

of said county and State ; that the original survey and plat of said town has 

been lost [or, destroyed] ; that on the day of , 18 — , the board of 

trustees of said town ordered a new survey and plat of said town to be made, 

which was made as so ordered ; and that said survey and plat was on the 

day of , 18 — , adopted by said board by a majority of its members, the 

original of w^hich survey and plat so adopted is hereto annexed, marked 
"Exhibit A." 

X. L. 

Subscribed and sworn to before me this day of , 18 — . 

[Notary Seal.] R. U., 

Notary Public. 

Board of County Commissioners' Order-Book Entry. 

Ordered that the survey and plat of the town of , of this county, 

be recorded by the recorder of this county in the record of deeds in his office as 
the survey and plat of said town. 



ARTICLE 7— SEWERS. 

SEC. SEC. 

3392. Power over sewers. 3400. Payment, how enforced. 

3393. Proceedings to establish and construct. 3401. Officers' fees. 

3394. Order to appraisers. 3402. Superintendent — Engineer. 

3395. Majority may act. 3403- Town may pay part of cost. 

3396. Schedule filed — Construction. 3404' Terms of letting. 

3397. Apportionment of cost. 3405. Protection of server — Tapping. 

3398. Collection of cost. 3406. Intention of act. 

3399. Penalty for non-payment. 

[1867, p. 205. Approved and in force March 11, 1867.] 

Sec. 3392. Power over sewers, i. The board of trustees of any 
incorporated town in this State shall have full power and authority 
to construct and repair any sewer along any street or alley in an\- 
incorporated town in this State, or along any part of a street, 
block, or square in any incorporated town in this State ; and they 



§ 3393] TOWNS. [488 

shall be the sole judges of the necessity and utility of the construc- 
tion of such sewer. 



XECESSARY STEPS TO BE TAKEX AXD THEIR ORDER. 

1. Acquisition of title to street or alley in Avhich sewer is to be constructed. 

2. Resolution ordering construction of sewer, designating its beginning, 
route, terminus, depth below grade, size, and materials to be used, § 3393- 

3. Appointment of three appraisers, freeholders and voters, § 3393; and 
notice to them of their appointment, § 3394. 

4. Examination by appraisers, estimate of benefits and damages, and sworn 
report to board, accompanied by a schedule showing the lots assessed, § 3393. 

5. Recording assessment and construction of sewer, § 3396. 

6. Apportionment of costs to the lots benefited, an assessment sheet made 
out and recorded in the town records, § 3397. 

7. Copy of assessment made out by the town clerk, certified to and placed 
in hands of treasurer, who publishes a notice thereof, and proceeds to collect it the 
same as if it were a tax, § 3398. If the assessment due is not paid, the lien there- 
of may be enforced in the circuit court, 6 3400. 



1. See § 3106, clauses 40 and 43, notes. 

2. A city or town may purchase land, or acquire an easement over land 
for a sewer out-let, even though such land is situated beyond the limits of the, 
town, 121 Ind. 154; 103 Ind. 372. 

Sec. 3393. Proceedings to establish and construct. 2. Whenever 
the board of trustees of any incorporated town in this State shall 
determine to construct any sewer authorized by this act, such 
board of trustees shall, upon their records, specify and determine 
the place of beginning and termination of such sewer, its route, 
course, and distance, and shall also determine and" specify, in their 
said records, the depth below the grade at which such sewer shall 
be sunk, the size or diameter of the same, and of what materials 
the same shall be constructed. And thereupon such board of trus- 
tees shall appoint three appraisers, freeholders and voters in said 
town, not in any Avay interested in the proposed sewer, whose duty 
it shall be to examine all the in-lots, out-lots, and parts of in-lots 
and parts of out-lots in said town, that would in any manner be 
benefited by the construction of the proposed sewer; and shall 
assess the amount of benefits to each lot or parts of lots, that will 
result thereto by the construction of such sewer. And said ap- 
praisers shall make out a schedule of said lots or parts of lots, with 
the said appraisement thereto ; and shall append to such schedule 
their affidavit that the said assessment is, in all respects, a true and 
impartial assessment of the benefits resulting to each lot and part 
of lot in any way benefited by the said proposed sewer, according 
to the best of their judgment. And the said appraisers shall file 
said schedule with the clerk of the board of trustees of such town, 
who shall record the same in the records of said board of trustees ; 
and from and after the recording of said schedule above directed, 



489] 



SEWERS. 



[§ 3394 



the assessments therein made shall be a Hen upon the lots and parts 
of lots, respectively, against which they are made, to be in no 
manner divested only as hereinafter provided. 



Order. 



Resolved by the board of trustees of the town of , of the State 

of Indiana, that a sewer be constructed in the center of Fourth street of 
said town, from North street to Eel river. Said sewer shall be constructed six 
feet below the present established grade of said Fourth street, shall have a two- 
foot inside circular diameter, and be constructed of two rings of hard brick laid 
in lime mortar, so as to make the walls thereof nine inches thick. A. B., C. D., 
and E. F., freeholders and voters of said town, not in any way interested in the 
proposed sewer, are hereby appointed appraisers to examine all the property in 
said town that w ill be in any manner benefited by the construction of said sewer, 
and to assess the amount of benefits to each lot or parts of lots that will result 
thereto by the construction of said proposed work. 



Report of Appraisers. 

To the Board of Trustees of the To7V7t of ,- 

The undersigned, appraisers appointed by you to assess the benefits 
accruing to property of said town by reason of the construction of a sewer in 
the center of Fourth street of said town, from North street to Eel River, respect- 
fully report that they have viewed the premises, and make the following assess- 
ment of benefits to lots and parts of lots within said town, to wit : 



Name of Owner. 


No. Lot. 


Addition, 


Amount of 
Benefits. 











A. B., 
CD., 

E. F. 

State of Indiana, County of , ss: 

A. B.,C. D., and E. F., upon their oaths say that the above and foregoing 
assessment is, m all respects, a true and complete assessment of the benefits 
resulting to each lot and parts of lots that will be in any way benefited bv the 
construction of the said proposed sewer, according to the best of their judg- 
ment. 

A. B., 
CD., 
E. F. 

— day of , iS — . 

L. U., 
Notary Public. 

Sec, 3394. Order to appraisers. 3. Before said appraisers shall 
proceed to discharge their duties as in the preceding section, said 
board of trustees shall cause to be issued to them a certified copy 
of their order, giving the commencement, termination, distance, 
route, depth below the grade, and the materials of which such 
sewer is to be constructed, and of their appointment. 



Subscribed and sworn to before me this 
[Notary Seal.] 



§§ 3395—3397] towns. [490 

Sec. 3395. Majority may act. 4. The majority of said appraisers 
shall be competent to act ; and two of them concurring in the same 
proposition, such concurrence shall be taken as the decision of said 
appraisers on such proposition. 

Sec. 3396. Schedule filed — Construction. 5. As soon as the 
said schedule of assessment, made by the said appraisers, is re- 
turned and recorded in the records of said board of trustees, such 
board of trustees shall proceed and cause the said sewer to be con- 
structed in accordance with their previous plans and specifications, 
as near as can be done, making such alterations from the original 
plan, only, as the necessity of the case or the better construction 
of the work may seem to require. 

1. The board may let out the contract to the lowest and best bidder; or 
construct it by employing laborers for that purpose. 

2. An assessment for the construction of a sewer is within the jurisdiction 
of the city or town, and can not be declared void in a collateral attack to quiet 
title to land sold for the assessment, unless it appears there was no authority 
over the particular improvement ordered or the particular property assessed. 
Such a person is not entitled to a general decree quieting his title while any 
part of the asressment is due. One who would save his title must pay, or ten- 
der payment of, the lien. Unless the assessment is wholly void, he is not 
entitled to a general decree, 120 Ind. 520. 

Sec. 3397, Apportionment of cost. 6. As soon as the board of 
trustees ascertain the cost of the construction of such sewer, they 
shall make a division of the cost of said sewer among the owners 
of said lots and parts of lots so assessed for the construction of 
such sewer ; and as the whole amount of assessment made for the 
construction of said sewer, so shall the lots and parts of lots owned 
by each individual be to the amount each individual shall pay 
upon each lot or part of lot so owned by him for the construction 
of said sewer. And the said board of trustees shall cause a list of 
the owners' names of said lots or parts of lots, with the descrip- 
tion of said lots attached thereto, and append the amount in dol- 
lars and cents so found as being the share properly chargeable 
against each lot and part of lot so owned by any one person, to be 
made out by the clerk of said board of trustees, and cause it to 
be recorded in the records of the said board of trustees of such 
town. 



Assessment. 

Whereas, the whole cost of the sewer in the center of Fourth street of this 
town, from North street to Eel River, is $ ; and 

Whereas, said town should and will pay on the construction thereof the sum 

of % , leaving a remainder of $ "to be paid by the owners of property 

heretofore assessed with benefits by reason of the construction of said sewer; 
therefore 

It is ordered that the owners of said lots so assessed be required to pay 
per cent, on the amount of their assessment, as follows, to wit: 



49i] 



SEWERS. 



[§§ 3398, 3399 



Xame of Owner. 


Xo. Lot. 


Addition. 


Amount 
of Benefits. 


Amount 

required to 

pay. 










, 



Sec. 3398. Collection of costs. 7. The clerk of the board of 
trustees of said town shall make out, under his hand and the seal 
of said town, a certified copy of said list, showing the amount 
chargeable against each lot and part of lot in said town, and deliver 
the same to the treasurer of said town, which shall be full author- 
ity for him to receive and collect the amount specified in said 
list ; and the said treasurer of said town shall have full power and 
authority for collecting such sums, and is vested with all the power 
and authority in the collection of the same that the marshal of 
such town has in the collection of taxes levied by said town, and 
shall be governed by the same rules and regulations, so far as 
applicable, that county treasurers are in collecting taxes in this 
State. And the owners of said lots or parts of lots shall have 
sixty days from the time such list is placed in the hands of such 
treasurer, within which they may pay the same without cost. 
Such treasurer, as soon as he receives such list from the clerk of 
said town, shall cause notice to be given thereof, either by publi- 
cation of such list in a weekly newspaper printed in said town, or 
by posting up three copies of said list in three public places in 
said town. 

Notice. 

Notice is hereby given that on the day of , iS — , I received 

from the clerk of the town of , of the State of Indiana, a list of the owners 

of lots and parts of lots assessed with benefits by reason of the construction of 
a sewer in the center of Fourth street of said town, from North street thereof to 
Eel River, wherein it appears that the following persons are assessed upon the 
lots described with the amounts set opposite thereto, viz.: 



Name of Owner. 


No. Lot. 


Addition. 


Amount. 















All such persons are required to pay the amounts severallj- due from them 

bv the day of , i8 — . 

Dated , iS— . R. Z. 

Treasurer of the Town of . 

Sec. 3399. Penalty for non-payment. 8. At the expiration of 
sixty days from the time such list is placed in the hands of the 
said treasurer, he shall add thereto ten per cent, on the amount so 



§ 340o] TOWNS. [492 

charged against each lot and part of lot remaining at that date, 
which shall be collected as a penalty for non-payment within the 
sixty days ; and from that date there shall be charged six per cent, 
interest on all remaining unpaid. 

Se'c. 3400. Payment, how enforced, 9. The said lien" created by 
this act on the said lots or parts of lots by the assessment shall be 
in favor of the said town in which such lots are situated, and the 
same may be enforced by an action in the name of the town in any 
court of competent jurisdiction; and in such action the presump- 
tion of law shall be that all the provisions of this act have been 
complied with ; and the only defense that the defendant shall be 
allowed to set up in said action shall be that he has paid the 
amount with which said lots or parts of lots are charged, and that 
said lots or parts of lots are not benefited to the amount assessed 
against the same. 

No personal judgment can be rendered against the delinquent owner fcr 
non-payment of the assessment. 

Complaint. 

In the Circuit Court. Term^ iS — . 

The Town of , vs. A B . No. . 

The town of , of the county of , and State of Indiana, com- 
plains of A. B., and says: That on the ■ day of , 18 — , at a regular 

meeting thereof, the board of trustees of said town ordered the construction of 
a sewer in the center of Fourth street of said town, extending from North street 
to Eel river, specifying in their records the place of beginning and termination 
of said sewer, as aforesaid, its route, course, distance, depth below the grade at 
which it should be sunk, the size or diameter of the same, and the materials of 
which it should be constructed ; and at the same time appointed three per- 
sons appraisers, who were freeholders and voters of said town, not in any way 
interested in the proposed sewer, to examine all the property of said town that 
would in any manner be benefited by the construction of the proposed sewer, 
and to assess the amount of benefits to each lot or part of a lot that would resvilt 

thereto by the construction of said sewer. That said appraisers on the 

day of , 18 — , filed a report and schedule of said lots and parts of lots with 

an appraisement thereto attached, of their doings in said matter, with the clerk 
of said town, which report was duly verified by their affidavits, and said clerk 
immediately recorded said report, schedule and appraisement in the records of 
said town. That after the filing of said report said board of trustees caused said 
sewer to be constructed as determined in their written order aforesaid ; and as 
soon as they ascertained the cost of the construction of said sewer they made a 
division of the cost thereof among the owners of said lots and parts of lots so as- 
sessed for the construction thereof, on the following basis, to wit: As the \vhole 

amount of the assessment, which was $ , made for the construction of said 

sewer v/as to the whole cost of the construction thereof, which was $ , 

so they assessed the lots and parts of lots owned by each individual with the 
amount each individual should pay upon each lot or part of lot so owned by 
him. That among the lots so assessed with benefits was lot 16 of Blair's addi- 
tion to said town, then and now owned by said defendant, which lot was assessed 
with $ benefits. That said board, in making a division of the cost of con- 
structing said sewer, as aforesaid stated, assessed to said lot the sum of $ . 

That immediately upon making the division of said cost among the lots assessed 
with benefits, as aforesaid, said board of trustees caused a list of the owners' names 
of said lota and parts of lots, with a description of said lots attached thereto, and 
appended the amount in dollars and cents so found as being the share properly 



493] SEWER. [§§ 3401—3405 

chargeable against each lot and part of lot so owned bj' any one person, to be 
made out by their c^srk, and caused it to be recorded in their records, a copy 
of which is filed.herewith, marked " Exhibit A," and made a part hereof. That 
the clerk of said board made out, under his hand and the seal of said town, a 
certitied copy of said list, showing the amount chargeable against each lot and 

part of lot in said town, and on the day of , 18 — , delivered the 

same to the treasurer of said town. That said treasurer, as soon as he received 
said list from the clerk of said town, as aforesaid, immediately caused a n(jtice 
to be given thereof by publication of said list in the A r^^us-JVervs , a weekly news- 
paper printed in said town. That at the expiration of sixty days from the time 

that said list was placed in the hands of said treasurer said sum of $ , 

so assessed on said lot 16, jet remained unpaid, an^ the same is now due 
and unpaid. 

\Vherefore the plaintiff demands judgment for said $ , with ten per 

cent, penalty thereon, and with six per cent, interest on said $ — , and pen- 
alty from the day of , 18 — ; and prays that the lien thus created on 

said lot be foreclosed and the same be ordered sold to satisfy the amount found 
due bv reason of said assessment. 

C. D., 

Attorney for the Phuntitl. 

Sec. 3401. Officers' fees. lo. The costs of appraisers and town 
officers in the collection of said funds for building said sewer, and 
in making provisions for building the same, shall be paid out of 
the treasury of said town as other fees. 

Sec. 3402. Superintendent — Engineer. 11. The sewers con- 
structed under this act shall be done under the direction of the 
board of trustees, and to their satisfaction and acceptance ; and 
they may appoint an agent to oversee the same, and also employ 
an engineer to lay off and make specifications and plans of the 
work. 

Sec. 3403. Town may pay part of cost. 12. The board of 
trustees shall have a power to pay a part of the construction of 
said sewer out of the general funds or treasury of said town, when, 
in their judgment, the same would be fair and equitable, and when 
they so determine, they shall order and specify what part of the 
construction of said sewer shall be paid out of the general funds 
of such town, before making the pro rata dividend upon said 
assessment on said lots or parts of lots to be benefited ; and shall, 
in that case, take into consideration, in making said/r(9 rata divi- 
dend, the amount to be paid out of the general funds of said town, 
and making said amount -to be paid by the owners of the lots and 
parts of lots less the amount paid out of the general funds of said 
town. 

Sec. 3404. Terms of letting. 13. In letting the said work the 
said trustees shall specify, and agree with the contractor, as to the 
time and manner of payment therefor. 

Sec. 3405. Protection of sewer — Tapping. 14. The board of 
trustees of such town shall, by an ordinance, provide for the pro- 
tection of said sewer and the manner and terms that an}' person or 
persons may tap, open, or intersect said sewer; and no person 



§ 34o6] TOWNS. [494 

shall be allowed to tap, open, or intersect, or in any manner inter- 
fere with the same, without first procuring a permit from said 
board of trustees. 

Sec. 3406. Intention of act. 15. It is not the intention of 
this act to take away the power that the board of trustees of incor- 
porated towns now have, by law, to build sewers and pay for the 
same out of the general funds, of such town, but the intention is 
to create an additional means for construction of sewers, whereby 
those most benefited' by their construction will pay most therefor. 



CHAPTER XXIV. 

ARTICLE 7— TOWN BUILDING. 

SEC. SEC. 

3493. May be incorporated. 349S. When incorporated. 

3404. Notice. 349Q- Powers. 

3495. Writttn statement. 3500. Records — Evidence. 

3496. Statement to be recorded. 3SOi. Trustees may convey. 

3497. Twenty may org-anize. 

[1S58 S.) p. 26. Approved and in force December 22, 185S.] 

Sec. 3493. May be incorporated, i. Where any persons may- 
have heretofore associated themselves together for the purpose of 
building a town within any county in this State, they may be 
incorporated as hereinafter provided. 

Sec. 3494. Notice 2. Notice of the intention to organize such 
corporation, and of the time and place of holding the first meet- 
ing, signed by one or more persons, shall be published in some 
newspaper of the county where such town has been located, or, if 
none, then in some newspaper of an adjoining county, for at least 
twenty-one days before such meeting is held. 

Sec. 3495. Written statement. 3. At such first meeting, a 
temporary or permanent presiding officer and secretary shall be 
selected, and a written statement prepared specifying the object of 
such association, its name, and the time and manner of giving such 
notice, to be signed by such presiding officer and secretary. 

Fec. 3496. Statement to be recorded. 4. Such statement and a 
copy of such published notice shall be filed in the office of the 
recorder of such county, and, by him, shall be recorded in the 
record of deeds, for which he shall be entitled to a fee of two 
dollars. 

Sec. 3497. Twenty may organize. 5. It shall not be necessary 
for a majority of the members of such association to be present at 
such first meeting, but any twenty or more shall be sufficient to 
hold the meeting and organize the corporation. 

Sec. 3498. When incorporated. 6. From the time of filing such 
statement as aforesaid, such association shall be deemed and held 
a body corporate and politic by the name selected as aforesaid, 

495 



§§3499—3501] TOWNS. [496 

with full powers to sue and be sued, contract and be contracted 
with, have a common seal, make laws for their own government, 
and may exercise all such other powers as are incident to corpora- 
tions, for the purpose of carrying into effect the object of their 
association. 

Sec. 3499. Powers. 7. Such corporation may acquire, by pur- 
chase or otherwise, real estate, and may hold and convey the same, 
or any part thereof, in such manner as it may see fit; but nothing 
herein contamed shall be so construed as to exempt such lands 
from taxation as other lands are taxed. 

Sec. 3500. Eecords — Evidence. 8. Such corporation shall keep 
a record of its proceedings ; and such record or copies thereof, 
duly attested by its clerk or secretary, may be read in evidence in 
all suits at law where the interests of such corporation are con- 
cerned. 

Sec. 3501. Trustees may convey. 9. Wherever any persons 
have associated for the purpose aforesaid and have purchased real 
estate prior to the passage of this act, and have taken deeds to one 
or more persons in trust for such association, and such association 
shall hereafter become incorporated under the provisions of this 
act, then such trustees may and shall convey to such corporation 
all such real estate, and shall assign to such corporation all such 
title-bonds as may have been executed to them in trust for such 
association ; and such conveyance and assignment shall pass as good 
and perfect a title to such corporation for such lands as if such 
association had been incorporated at the date of the execution of 
such deeds and said deeds had been executed to the corporation. 



CHAPTER XXXIIl. 
LIBRARIES. 



ART 


AKT. 


1. 

2. 


County. 0. City or County. 
City, To-cvn, or Village. 




ARTICLE I— COUNTY. 


SEC. 


SEC. 


3784. 


How established. 3787. Duties of librarian 
Annual appropriation. 378S. May loan money. 
Trustees— Duties. 3789. How loans made. 
AVho may use books. 3790. Duties of treasurer 
Bv-laws— Fines. 



[i R. S. 1852, p. 353. Approved June 18, 1852, and in force May 6, 1853.] 

Sec. 3782. How established, i. To establish and maintain a 
public library in each of the several counties, for the use of the 
inhabitants thereof, there shall be reserved ten per cent, of the net 
proceeds of the sale of all lots within the town where the county- 
seat is situate, sold as the property of such county, and ten per 
cent, upon all donations made to procure the location of such 
county-seat; and the county commissioners shall make the neces- 
sary order for the collection and payment of the same. 

Sec. 3783. Annual appropriation. 2. The board of commis- 
sioners doing county business may, at their June session in each 
year, appropriate a sum not less than twenty nor more than 
seventy-five dollars for the purchase of books, maps, and charts 
for such library ; and the same shall be paid to the treasurer of the 
library by the treasurer of the county, upon the certificate of the 
auditor thereof. 

Sec. 3784. Trustees — Duties. 3. The clerk, auditor, and re- 
corder shall have the charge of such library, and are hereby con- 
stituted trustees for that purpose. They shall elect one of their 
number treasurer, and a suitable person librarian, and shall prepare 
a proper room, with the necessary shelves and cases, within some 
county office or building, when practicable, to place and safely 
keep such library. They shall cause all moneys appropriated or 
belonging to the library to be expended in the purchase of books, 

32 497 



§§ 3785—3788] LIBRARY.. [498 

charts, and maps, and report to the board of county commission- 
ers, in June annually, the kind and number of books purchased, 
with the cost thereof. Each of said officers shall be liable on his 
official bond for the performance of duties herein required of him. 

The clerk, auditor, and recorder are ex officio trustees of the county library, 
and are authorized by § 3788 to loan the surplus library fund for any term not 
exceeding four years, with seven per cent, interest, payable annually in advance. 
Any one borrowing said fund and executing his note and mortgage therefor is 
estopped from denying the corporate existence of the library or the authority 
of the trustees, 91 Ind. 229. 

Sec. 3785. Who may use books. 4. Every inhabitant of the 
county giving satisfactory evidence or security for the safe -keeping 
and return of books, shall be entitled to take and use the same 
upon the proper application to the librarian. But no one person 
shall, at the same time, have more than two volumes of books, 
nor for a longer period than forty days without returning such 
books to the library. 

Sec. 3786. By-laws — Fines. 5. The trustees shall establish 
by-laws and rules for the regulation of such library, and the same 
shall be placed at a conspicuous point in the library-room, for the 
inspection of visitors. All fines or forfeitures accruing from the 
violation of such by-laws shall be recoverable in an action before 
any court of competent jurisdiction, in the name of the State of 
Indiana, for the use of such library; and the librarian shall be a 
competent witness in such action, and the entries made upon his 
books, in relation to such library, shall h^ prima facie evidence of 
the things therein charged. 

Sec. 3787. Duties of librarian 6. The librarian shall make an 
entry, in a proper book, of each book or map taken, the time 
thereof, by whom, and when returned. He shall also keep a reg- 
istry of the fines and penalties assessed, and collect the same by 
suit or otherwise. At the June session of the board of county 
commissioners in each year, he shall report the condition of such 
library, the books added or lost within the preceding year, and 
the value of the same. 

[1861, p. 142. In force March ii, 1861.I 

Sec. 3788. May loan money, i. Any county library that may 
have been organized under special laws in this State, and yet 
maintains its organization, and shall have a portion of its funds 
reserved for replenishing the library from time to time, may loan 
said surplus fund for any term not exceeding five years, with 
interest payable annually in advance, at the rate of seven per cent, 
per annum. 

See § 3784, 7iote. 



499] CITY, TOWN, OR VILLAGE. [§§ 3789 3794 

Sec. 3789. Loans, how made. 2. Such loans shall be made in 
the same manner, and in all respects that may be practicable, 
under the same regulations as the common school funds are now 
by law managed. The borrower shall be subject to the same lia- 
bilities, and the collection thereof enforced in the same manner as 
said school funds. 

Sec. 3790. Duties of treasurer. 3. The treasurer of such library 
shall, in loaning and collecting the funds of the library, perform 
the same duties and incur the same liabilities as the county audit- 
or does by existing laws in regard to the same duties in behalf 
of the school fund ; but such treasurer shall be governed by the 
order of the board of trustees, and be accountable thereto. 



ARTICLE 2— CITY, TOWN, OR VILLAGE. 



3791. How established. 3S01. Quorum — Vacancies — Term. 

3792. Chairman and clerk, 3S02. Donations. 

3793. Election of directors. S^^S- Stock, as prizes. 

3794. Statement. 3804. Dissolution — City to manage. 

3795. To be recorded. 3805- Tax. 

3796. Powers. 38050. Tax for reading matter. 

3797. Banking forbidden. 3805^, Limitation on tax. 

379S. Directors annually elected. 38051:. Town becoming city — Library tax. 

3799. By-laws. 38o5<^. Libraries in large cities. 

3S00. Seal — Assessments — Officers. 3805^. Laws repealed. 

[i R. S. 1S52, p. 355. Approved February 16, 1852, and in force May 6, 1853.] 

Sec. 3791. How established, i. The inhabitants of any city, 
town, village, or neighborhood, in this State, or any part of them, 
whenever they have subscribed the sum of fifty dollars, or upwards, 
toward the establishment of a public library, may assemble them- 
selves for the purpose of holding an election for directors. 

Sec. 3792. Chairman and clerk. 2. If two-thirds of the sub- 
scribers are present, they may proceed to choose, by voice, a 
chairman, who shall preside at that meeting, and a clerk, who shall 
keep a record of the same. 

Sec. 3793, Election of directors. 3. After a chairman and^ 
clerk are chosen, the shareholders may proceed to choose, by 
bahot, seven directors, and to agree upon a name by which their 
library shall be known. The directors shall appoint one of their 
number to be president at their meetings, who shall have no other 
than a casting-vote. 

Sec. 3794. Statement, 4. A true statement of the proceedings 
of such meeting, including the amount subscribed and the number 
of subscribers present at their meeting, shall be sworn or affirmed 
to before some justice of the peace of the county, by the chairman 
or the clerk provided for by the second section of this act [§ 3792], 



§§ 3795 — SSoo] LIBRARIES. [500 

and filed in the recorder's office; and it shall be the duty of such 
justice to certify on such statement that it was sworn or affirmed to 
before him. 

Sec. 3795. To be recorded. 5. The recorder of the county 
shall record the said statement in his book of record, when re- 
quired. 

Sec. 3796. Powers. 6. After such statement shall be duly re- 
corded, the president and directors, and their successors forever, 
shall be a body corporate and politic, to be known by such name 
as is registered in the recorder's office. They shall be capable, in 
law and equity, to sue and be sued, plead and be impleaded, an- 
swer and be answered unto, defend and be defended, in any court 
or courts, or before any judge or judges, justice or justices, person 
or persons whatsoever, in all manner of suits, actions, plaints, 
pleas, causes, and demands whatever, in as effectual a manner as 
any other person or persons, body or bodies corporate or politic, 
may or can do. 

Sec. 3797. Banking forbidden. 7. Nothing contained in this 
act shall be so construed as to authorize any library company in- 
corporated in this State to issue notes or bills of credit payable to 
any person or persons or his or their order, or to bearer ; nor to 
deal in any kind of bills of exchange, notes, or due bills whatever. 

Sec. 3798. Directors annually elected. 8. Except the first 
election of directors, the annual election forever thereafter shall be 
held on the first Monday in January; but if any annual election 
should be omitted, the directors shall remain in power until the 
next annual election, and until successors shall be chosen. 

Sec. 3799. By-laws. 9. Such library or libraries shall be governed 
and regulated by such by-laws as may, from time to time, be made 
by the president and directors of the same, not inconsistent with 
the constitution and laws of this State, who shall have power to 
alter, amend, abolish, and renew any such by-law or by-laws at 
pleasure. 

Sec. 3800. Seal — Assessments — OiScers. 10. The president and 
directors shall have power to make a common seal, and the same 
to alter, break, change, or renew at pleasure. They shall have 
power to levy a tax on the shareholders, provided such tax do 
not exceed one dollar on each share in any one year. Nothing, 
however, in this act shall be so construed as to prevent a ma- 
jority of two-thirds of the shareholders, attending at their annual 
meeting, from increasing such tax to any sum not exceeding five 
dollars on each share in any one year. They shall have power 
to appoint a treasurer and librarian, and the same to remove at 
pleasure. 



50l] CITY, TOWN, OR VILLAGE. [§§ 380I 3805 

Sec. 3301. Quorum — Vacancies — Term. ii. A majority of the 
directors shall be necessary to form a quorum. They shall have 
power to fill vacancies that may happen in their own body. And 
the director or directors by them elected shall serve until the next 
annual election thereafter, and until others are elected in their 
stead. 

Sec. 3802. Donations. 12. They shall have power to receive, 
by donation, any books, moneys, papers, lands, or any other thing 
or things; and such donation, or the income or the interest thereof, 
shall be applied to no other purpose than to the true interest and 
objects of the library on which it was bestowed, according to the 
true intent and meaning of this act. 

[1S73, p. 176. Approved and in force March 8, 1873.] 

Sec. 3803. Stock as prizes. 8. The common council of such 
city shall have the power, in their discretion, to cause the distri- 
bution and transfer of shares of stock held by the city, as prizes to 
the children of the pubHc schools in the city for good behavior and 
scholarship. 

Sec. 3804. Bissolut^on — City to manage. 9. Upon the dissolu- 
tion or forfeiture of the franchises of such library association in 
which any city may have purchased stock, and is, at the time of 
such dissolution or forfeiture, the holder of one-third of the shares 
of the whole stock, the property of such association shall become 
the property of the city, for the free use and enjoyment of the in- 
habitants of such city, under regulations to be prescribed by the 
common council ; and the common council shall thereafter control 
such library, and shall have power to increase the same, and levy 
and apply the tax provided for in section seven of this act [§ 3815], 
to the increase and expenses of such library. 

[1885 S., p. 9. Approved and in force February iS, 1SS5.] 
Sec. 3805. Tax. i. In any township in which there has been, 
or may hereafter be established, by private donation, a library of 
the value of one thousand dollars or more, for the use and benefit 
of all the inhabitants thereof, the township trustee of such town- 
ship shall annually levy and collect not more than one cent on the 
one hundred dollars upon the taxable property within the limits of 
such township; which shall be paid to the trustees of such library, 
and be apphed by them to the purchase of books for said library, 
and may, with the consent of the board of commissioners of the 
county, where it has become necessary to erect or enlarge a library 
building, annually for such period as may be necessary, levy and 
collect not more than five cents on the one hundred dollars upon 
the taxable property of said township, for not more than three years 
successively, which shall be expended by such trustees in the erec- 
tion or enlargement of a library building. [El. Sup. § 1005.] 



§ 3805^] LIBRARIES. [502 

[1S83, p. 200. Approved and in force March 8, 1883. j 

Sec. 3805^. Tax to pay for reading-matter for library association. 

I. Whenever any library or library and reading-room combined, 
established under an act entitled ' * An act to establish public libra- 
ries," approved February 16, 1852, and the acts supplementary 
thereto and amendatory thereof, shall be located within the cor- 
porate limits of any incorporated town of this State, the president 
and board of directors of such library may file a written request 
and agreement, duly signed by them or a majority of them, with 
the board of trustees of such town, agreeing therein to keep and 
maintain such library or library and reading-room open and free 
to the use and benefit of all the inhabitants of such town, and re- 
questing the board of trustees of such town to levy a tax upon the 
taxable property of such town, to be applied in the purchase of 
reading-matter for such library. If, in the judgment of the board 
of trustees of such town, the books and other reading-matter of 
such library is worth, at the time of filing such agreement and re- 
quest, the sum of seven hundred and fifty dollars or more, they 
may annually levy a tax upon all the taxable property of said town 
of not less than one-fourth nor more than three-fourths of one mill 
upon the dollar, to be collected as other taxes of such town are 
collected. Such tax, when collected, shalf be paid over to the 
president and directors of such library, and shall be by them ex- 
pended for the purpose of purchasing reading-matter for such 
library, and for no other purpose ; and they shall keep such tax 
separate from all other funds, and, in a proper book kept by them, 
shall show the amount of tax received, to whom and when paid 
out, the amount, and upon what purchase. From the time of the 
first receipt of any tax under this act, and so long thereafter as the 
trustees of such town shall annually levy and collect or cause to 
to be collected and paid over a tax under the provisions of this act 
for the purpose aforesaid, it shall be the duty of the president and 
directors of such library to keep the same open and free to the 
use and benefit of all the inhabitants of such town, subject only to 
such reasonable and proper restrictions as they, the president and 
board of directors, may impose for the preservation and usefulness 
of the same. But if the trustees of such town shall during any 
year fail or refuse to levy and collect a tax for the purpose afore- 
said, under the provisions of this act, then the president and 
directors of such library shall not be longer required to keep the 
same open for the use and benefit of the inhabitants of such town, 
and the books purchased with the proceeds of such tax shall be 
the property of such library association, the same as if derived 
from any other source, after the receipt of any tax under the pro- 
visions of this act, and so long as the trustees of any such town 
shall annually levy and collect a tax or cause the same to be col- 
lected and paid over for the purpose aforesaid. If the president 
and board of directors of any such library shall fail or refuse to 



503] CITY, TOWN, OR VILLAGE. [§§ 3805(^—3805^ 

keep the same open and free to the use of all the inhabitants of 
such town, subject to the restrictions aforesaid, then ail of the 
property of such library association, real estate excepted, shall 
become the property of such town, and be subject to the control 
and directions of the trustees thereof, and they may then levy and 
collect the tax provided for in this act, to be expended as well in 
keeping and maintaining such library as supplying reading-matter 
therefor. [El. Sup. § 1002.] 

Sec. ZS05d. Limitation — Tax for one association in any one year. 2. 

The trustees of any town shall have no authority by virtue of this 
act to levy and collect a tax for more than one library association 
in any one year. [El. Sup. § 1003.] 

[1885, p. 120. Approved and m force April 2, 1S85.] 

Sec. 3805<:. Town becoming city — Library tax. Whenever the 
board of directors of a library heretofore situate[d] within the 
limits of any incorporated town may have filed the agreement and 
request with the board of trustees of said town, provided for in an 
act entitled *'An act supplementary to an act to establish public 
libraries," approved February 16, 1852, approved March 8, 1883, 
and the board of trustees of such library in pursuance of such 
request and agreement and in accordance with said act, and such 
town may afterward have become incorporated as a city, the com- 
mon council of such city shall have all the powers to levy tax, and 
do all other things granted by said act above named to trustees of 
towns; and all the provisions of said act applicable to such library 
and its relations to the town before its incorporation as a city shall, 
after such incorporation, be applicable to such library and its rela- 
tions to such city. [El. Sup. § 690.] 

[18S9, p. 432. Became a law by lapse of time, without the Governor's approval, 

■ March 11, 1889.] 

Sec. 3805^. Libraries in large cities. The boards of school 
commissioners in cities having thirty thousand or more inhabitants 
according to the United States census for the year 1870 is hereby 
authorized to levy a tax each year not exceeding two-fifths of a 
mill on each dollar of taxable property shown by the certificate of 
the auditor of the county in which such city is situated of taxable, 
real and personal property, returned by said auditor to said board 
of school commissioners as required by law for the support of free 
libraries in connection with the common schools of such city, and 
to disburse any and all revenues raised by such tax levy in the 
purchase of books for and in fitting up of suitable rooms for such 
libraries, salaries to librarians and other expenses necessarily inci- 
dent to the maintenance of such library ; also to make and enforce 
such regulations as they may deem necessary for the taking out of 
and returning to and for the proper care of all books belonging to 



§§ 3805^—3808] LIBRARIES. [504 

such libraries, and to prescribe penalties for the violation of such 
regulations. [El. Sup. § 692.] 

Sec. 3805^. Laws- repealed. All laws and parts of laws incon- 
sistent with this act are hereby repealed. [El. Sup. § 692.] 

School boards in cities having ten thousand inhabitants and over, maj 
maintain free public libraries, §§ 4524 to 4533. 





ARTICLE 3— CITY OR COUNTY. 


SEC. 




SEC. 


3g6. 


Incorporation. 


3S11. " Voting stock. 




Instrument of association. 


3S12. Museum. 


3S0S. 


Recording--Powers — Exempt from tax- 


3S13. Fines — Costs — Judgment without re 




tion. 


hef. 


3S09. 


Gallery of Art— Reading-room— Park. 


3S14. Corporations may take stock. 


3610. 


Stock. 


3S15. Cities may take stock. 



[1881 S., p. 588, Approved and m force April 7, 1881.] 

Sec. 3806. Incorporation, i. Whenever any number of per- 
sons, not less than seven, shall desire to associate themselves 
together for the purpose of establishing and maintaining a public 
library in any city or county in this State, for the general benefit 
and'advantage of all the inhabitants of such city or county, it shall 
be lawful for such persons to become incorporated under this act 
in the manner hereinafter provided. 

Sec. 3807. Instrument of association. 2. - Whenever any per- 
sons shall desire to become incorporated under this act, for the 
purpose aforesaid, they shall, by an instrument in wTiting, set forth 
the objects of the association, the corporate name to be adopted, 
the names and places of residence of 'the incorporators, and a de- 
scription of the corporate seal; and they shall also, in, said instru- 
ment, provide the manner in which, in case of the death, resignation, 
or removal for any cause of any of the original incorporators, their 
successors shall be selected, so that the number of the members of 
such incorporation shall never be less than the original number. 
They shall, also, provide, in said instrument, what officers shall be 
elected by such corporation, and the time -and manner of their 
election ; and shall, also, provide therein, generally, in what manner 
the business of said corporation shall be conducted. • Which in- 
strument shall be signed by all the proposed incorporators, and 
filed in the office of the recorder of the county in which such library 
or reading-room is proposed t'o be established. 

Sec. 3808. Eecording — Powers — Exemption from taxation. 3. 

Upon the filing of such instrument in, the proper recorder's ofifice, 
it shall be the, duty of the recorder to record the same in the mis- 
cellaneous records of such county; and from the time of the re- 
cording thereof, as aforesaid, the said association and their succes- 
sors shall be deemed and held a corporation, and shall have, pos- 
sess, and enjoy all the rights, powers, and privileges given to cor- 



505] CITY OR COUNTY. [§§5809—3813 

porations by common law; to sue and be sued;' to borrow money 
and secure the payment ^of the same by notes and mortgages, 
bonds, or deeds of trust, upon the person '-^or real estate of such 
association; to'-purchase, rent, lease, hold, sell, and convey reales- 
tate for the benefitv-oT^such corporation; and to erect and maintain 
suitable buildings for the purposes aforesaid and for other objects 
properly connected therewith. Such corporation shall, also, have 
the right and power to receive and accept donations, either of 
money or real estate, either by gift or devise, and to hold, use, 
enjoy, mortgage, sell, and convey the same, for the benefit of such 
corporation, in the manner provided in the deed of gift or devise 
by which the same was received. And the real estate and per- 
sonal property of any such corporation which shaK have estab- 
lished a public library for the purposes aforesaid, anu shall have 
put the same into operation, shall be exempt from taxation for 
state, county, and all municipal purposes, and shall remain ex- 
empt, as aforesaid, so long as the same is used exclusively for the 
general benefit of the inhabitants of the city or county in which 
such library may be located. 

Sec. 3809. Gallery of art — Heading-room — Park. 4. When- 
ever any such corporation shall be established as in this act pro- 
vided, it shall be lawful, and such corporation shall have the pow- 
er, to establish and maintain, in connection with its library, a gallery 
of art' and public reading-rooms, and may also maintain, either in 
connection with its library building or separate therefrom, a pub- 
lic park. 

[1873, p. 176. Approved and in force March 8, 1873.] 

Sec. 3810. Stock. 2. All stock in such library association shall 
be deemed personal estate, and shall be transferred in the manner 
and under the conditions prescribed by the by-laws of the same ; 
and such>stock, shall be exempt from the levy of any state, county, 
township, or municipal tax, and, shall not be liable to execution 
for the debts of the owners of the same. 

Sec. 3811. Voting stock. 3. At all meetings of shareholders, 
each shareholder shall be entitled to one vote for each share of 
stock held by him ; and provision shall be made by the by-laws by 
which absent shareholders may vote by proxy. 

Sec. 3^12. Museum. 4. Library associations may make such 
provisions as the board of directors may deem proper, for main- 
taining, in addition to the library, a reading-room and museum. 

Sec. 3813. Fines — Costs — Judgment without relief. 5. All fines 
and forfeitures accruing from the violation of the b}'-laws and 
regulations made by the directors shall be recoverable, with costs, 
in an action before any court of competent jurisdiction ; and judg- 
ments for the same shall be collected without relief from valuation 
or appraisement laws. 



§§ 3814, 3815] LIBRARIES. [506 

Sec. 3814. Corporations may take stock. 6. Any mining or man- 
ufacturing company or other voluntary association within the State 
shall have the power to subscribe to and purchase stock in such 
library associations ; and the provisions of all laws inconsistent 
with this section are hereby repealed. 

Sec. 3815. Cities may take stock. 7. Any city incorporated 
under the laws of this State may, by the vote of two-thirds of the 
members of the common council thereof, subscribe to the stock of 
any public library association organized within its limits ; and for 
the payment of such shares of stock, and the assessments on 
the same, may, from time to time, as the common council may 
think proper, annually levy and collect not more than two mills 
on the dollar upon the taxable property within the limits of the 
city ; which shall be paid into the city treasury, and applied to 
the payment of such stock and assessments made thereon. 



CHAPTER XXXVIII 
RAILROADS. 



ART, ■ ART. 

3. Franchises 5. Public Aid, 



4020. Sig-nals at crossings. 4023. Damages. 

4021. Penalty for failure. 4024. Penalty for school fund. 

4022. Suits for. 

[18S1 S., p. 590. Approved April 8, 1881, and in force September 19, 1881.I 

Sec. 4020. Signals at crossings, i. It shall be the duty of all 
railroad companies operating in this State to have attached to each 
and every locomotive engine a whistle and a bell, such as are now 
in use or may be hereafter used by all well-managed railroad com- 
panies; and the engineer or other person in charge of or operating 
such engine upon the line of any such railroad shall, when such 
engine approaches the crossing of any turnpike or other public 
highway in this State, and when such engine is not less than 
eighty nor more than one hundred rods from such crossing, sound 
the whistle on such engine distinctly three times and ring the bell 
attached to such engine continuously from the time of sounding 
such whistle until such engine shall have fully passed such crossing: 
Provided, That nothing herein shall be so construed as to interfere 
with any ordinance that has been or may hereafter be passed by 
any city or incorporated town in this State regulating the manage- 
ment or running of such engines or railroads within the limits of 
such city or incorporated town : Provided, further, That all penal- 
ties incurred under the act of March 29, 1879, are hereby repealed. 

1. This section is constitutional, 67 Ind. 45. 

2. The failure to give .signals at a public crossing of the approach of a train 
is negligence /^r sc, and fixes the liability of the railroad company to one who, 
without concurring negligence, is injured thereby, 103 Ind. 31, 27 ; 99 Ind. 486; 
82 Ind. 435; 44 Ind. 76. The injured person, to recover, must show that he 
himself was free from negligence, 117 Ind. 56. To run a train so close behind 
another train as to make the statutory signals unavailing as a means of warn- 
ing travelers is such negligence, if any one, without concurring negligence, is 
thereby injured, as renders the railroad company liable for its negligence, loi 
Ind. 522; 120 Ind. 289, 367. The presumption is that both signals were given, 
120 Ind. 367. 

507 



§§ 402I 40S8] RAILROADS. [508 

[1879, P- 173' Approved March 29, 1879, and in force May 31, 1879.] 
Sec. 4021. Penalty for failiire. 2. Every engineer or other per- 
son in charge of or operating any such engine, who shall fail or 
neglect to comply with the provisions of the preceding section, 
shall be held personally liable therefor to the State of Indiana, in 
a penalty of not less than ten dollars nor more than fifty dollars, 
to be recovered in a civil action, at the suit of said State, in the 
circuit or superior court of any county wherein such crossing may 
be located; and the company in whose employ such engineer or 
person may be, as well as the person himself, shall be liable in 
damages to any person or his representatives who may be injur^Jti 
in property or person, or to any corporation that may be injured 
in property, by the neglect or failure of such engineer or other 
person as aforesaid. 

Sec. 4022. Suits for. 3. All actions for the recovery of the pen- 
alties prescribed in the preceding section shall be prosecuted in 
the name of the State of Indiana, by the prosecuting attorney of 
any county where such failure or neglect, as aforesaid, may 
occur; and such prosecuting attorney shall be entitled to recover 
and receive for his services in such cases, as a docket-fee, twenty 
dollars in each case, to be taxed as part of the costs in such cases. 

Sec. 4023. Damages. 4. The amount of damages which may be 
recovered under the provisions of this act, whether for bodily inju- 
ries or death, shall be within the discretion of the court or jury 
trying the cause : Provided, That in case of death such damages 
shall not exceed the sum of five thousand dollars. 

Sec. 4024. Penalty to school-fund. 5. All fines and penalties col- 
lected under the provisions of this act shall be appropriated to the 
benefit of the common-school-fund of the State ; and the clerk of 
the court wherein such fines and penalties may be assessed and 
recovered shall, upon receipt thereof, pay the same over to the 
treasurer of said county, for the purpose aforesaid. 



ARTICLE 5— PUBLIC AID. 



SKC. 



40SS. Petition to city. 4091. Interest — Sinking-fund. 

4089. Duty of council. 4092. Payment of aid. 

4090. Bonds. 4093. Election expenses. 

[1872, p. 49. Approved and in force December 14, 1S72.] 

Sec. 4088. Petition to city. 12. Whenever a petition shall be 
presented to the city council of any city incorporated under the 
general laws of this State, and situate in any county bordering 
on the state hne, or any river forming the state boundary, signed 
by a majority of the resident freeholders of such city, asking said 
council to make an appropriation of money (stating the amount), 



509J PUBLIC AID. [§§ 4089, 4090 

to aid a railroad company therein named, and coming under the 
provisions of the first section of this act [R. S. 1881, § 4077], by 
subscribing to the capital-stock of such company, to aid in con- 
structing a railroad from an adjoining state to such city, or to the 
state line, or to a river forming the state boundary bordering the 
county in which such city is situated, or to connect with any other 
railroad in said city or near the corporate limits of such city, it 
shall be the duty of such council, after being satisfied that such 
petition has been properly signed by the requisite number of resi- 
dent freeholders of such city, to cause the same to be entered at 
full length upon its records. 

For aid by cities generally to railroad companies, see § 3152, (uid notes. 

Petition. 



To the Common Council of ih^ City of * 

The undersigned, a majority of all the resident freeholders of said city 

of , State of Indiana, respectfully pray that you will subscribe in behalf 

of said city to the capital stock of the railroad company, in the corpo- 
rate name of said city, the following amount, to wit: dollars, for the pur- 
pose of aiding said company in constructing a railroad from the city of , in 

the State of , to said city of , [or, to a point in the line of said State 

immediately opposite said citj' of ; or, to a point on the bank of 

river immediately opposite said town of ]. 

[Signed.] 

Sec. 4089. Duty of connciL 13. Such city council shall take said 
petition under advisement, and, thereupon, make an order direct- 
ing the mayor of such city to subscribe to the capital-stock of such 
railroad company, in the proper corporate name of such city, the 
amount specified in such petition for the purposes aforesaid ; which 
subscription shall be made upon and subject to such provisions 
and conditions as a majority of such city council and mayor may 
deem necessary to protect the best interests of such city. 



Journal Entry. 

Whereas, A. B. and others, freeholders of this said city of , of 

the State of Indiana, have signed and presented the following petition to this 
council, to wit: {Set it out at length ivith the names] ; and 

Whereas, those who signed said petition are a majority of all the resident 
freeholders of said city ; therefore 

It is ordered and directed by this common council of said city that the 
mayor thereof subscribe to the capital-stock of said railroad company, in the 

corporate name of said city, the amount specified in said petition, to wit: 

dollars. 

Sec. 4090. Bonds. 14. It shall be the duty of such city council 
to issue the bonds of such city (as provided for in section five of 
this act — § 4081), to an amount sufficient to liquidate said sub- 
scription to the capital stock of such railroad company aforesaid, 
and to pay the same, or the proceeds thereof, in such liquidation, 



§§4091 4093] RAILROADS. [5 lO 

from time to time, as the work upon such railroad progresses or 
the conditions of such subscription to the capital-stock thereof 
require. 

Sec. 4091. Interest — Sinking-fund. 15. Such city council shall 
provide for the payment of the annual interest of such bonds, and 
also provide a sinking-fund for the payment of the principal there- 
of at maturity, by levying a special tax therefor upon the real and 
personal property in such city subject to taxation for state, county, 
and municipal purposes ; which tax shall be placed upon the tax- 
duplicate of such city, and collected as other taxes are collected 
for city purposes. 

Sec. 4092. Payment of aid. 16. After the money authorized by 
this act to be subscribed and appropriated shall have been levied 
and collected, or city bonds issued as aforesaid, the railroad com- 
pany for whose aid the same shall have been so levied and col- 
lected, or city bonds so issued, having fully done, performed, and 
complied with all the provisions and conditions upon which such 
subscriptions were made and connected therewith in good faith, 
shall be entitled to demand and have a full compliance with the 
terms of such subscriptions upon the part of such counties, town- 
ships, or cities, as the case may be, to the full intent and meaning 
of this act; and such railroad company, or any one of said peti- 
tioners, or any tax-payer of such county, township, or city, as the 
case may be, may compel the same to be done by mandate against 
such county, township, or city. 

Sec. 4093. Election expenses. 17. The officers conducting the 
elections provided for in this act shall be allowed the same pay as 
is allowed for like services in general elections. Should the elec- 
tion result in favor of a railroad appropriation, the expenses of the 
election, after being paid by the county, township, or city, as the 
case may be, shall be charged against the railroad company bene- 
fited, and deducted out of the first moneys collected by virtue of 
the appropriation. 





ARTICLE 


I— IN CITIE 


SEC. 




SEC, 


4143- 


Ho-\v formed. 


4149 


4144. 


"When incorporated. 


4150 


4145. 
4146. 


Powers. 


4151- 


Evidence of incorporation. 


4152 


4147. 
4148. 


Construction of track. 


4153 


Power to borrow money. 


4154 



CHAPTER XLI. 

CORPORATIONS— STREET RAILWAY COMPANIES. 

ART. ART. 

1. In Cities a?id Toivus. S. General Proznsio7is, 

2. Kxtcnsion beyond City or Tozvfi. 



Directors and officers. 

Annvial meeting — Election. 

By-laws. 

Stock transferable. 

Amendment or repeal. * 

Consent of common council. 

[1861 S., p. 75, Approved June 4, 1861, and in force September 7, 1861.] 

Sec. 4143. How formed, i. Any number of persons, not less 
than five, being subscribers to the stock of any contemplated 
street or horse railroad company may be formed into a corporation 
for the purpose of constructing, owning, and maintaining street or 
horse railroads, switches, or side-tracks upon and through the 
streets of the cities or towns within this State, by complying with 
the following requirements : Whenever stock to the amount of at 
least ten thousand dollars shall have been subscribed, the sub- 
scribers to such stock shall elect directors for such company from 
their own number, and shall severally subscribe articles of associa- 
tion, in which shall be set forth the name of the corporation, the 
amount of capital-stock of the company, the number of shares of 
which said stock shall consist, the number of directors, the names 
to manage the affairs of the company, and the city or town in 
which it is proposed to construct such road. 

Sec. 4144. When incorporated. 2. The articles of association 
formed in pursuance of the provisions of the preceding section 
shall be filed in the office of the secretary of state; and, there- 
upon, the persons who have subscribed the same, and all persons 
who shall become stockholders in said company, and their suc- 
cessors, shall be a body politic and corporate in perpetuity, by the 
name stated in the articles of association, and shall be capable of 
suing and being sued, and may have a common seal, the same to 
alter at pleasure. 

5" 



§§4145 4147] STREET RAILWAYS. [5 12 

Sec. 4145. Powers. 3. The said company shall be capable of 
purchasing, holding, and conveying any real or personal property 
whatever, necessary for the construction and equipment of the 
road, switches, and side-tracks, and for the erection of all neces- 
sary buildings and yards ; and may buy, own, and sell any kind of 
property that may be necessary to properly conduct or carry on 
the business of such road. 

Sec. 4146. Evidence of incorporation. 4. A copy of any arti- 
cles of association filed in pursuance of this act, and certified to 
be a correct copy by the secretary of state or his deputy, shall, in 
all courts or places, be evidence of the incorporation of such com- 
pany and of the facts therein stated. 

[1891, p. 109, Became a law by lapse of time, without the Governor's signature, 

March 5, 1891.) 

Sec. 4147. Construction of track. 5. Such company may con- 
struct its track, switches, side-tracks, or turn-outs upon the streets 
of said cities or towns under the following conditions and restric- 
tions: The said track shall be constructed upon the center or side 
of said streets, and shall conform exactly to the established grade 
of such street. The free passage of the streets of such city or 
town, occupied or used by said company, shall be impeded or 
obstructed by such company only to the extent necessary for 
the purposes for which said company was organized. The points 
where such track shall intersect and cross the streets of such city 
or town shall be so arranged by said company as to render the 
crossing as passable and in as good condition as any other portion 
of the street. The track shall be from four to five feet in width. 
Every company organized under the provisions of this act, and 
owning and operating a street railroad within any city having a 
population of one hundred thousand and upwards according to the 
last preceding United States census, shall permit the use of its track 
or tracks by any incorporated suburban passenger railway company 
from the corporate limits of such city or town to some central 
point in such city or town, for the purpose of receiving and dis- 
charging passengers, whenever the common council and board of 
aldermen, or the common council or board of trustees of any such 
city or town shall, by ordinance, fix such central point and grant a 
right of way thereto to such suburban passenger railway company 
upon or over any street, alley, road-bridge or public highway of 
such city or town, now or then occupied in whole or in part by 
any street railway company with one or more tracks : Provided, 
That such use shall be upon such conditions as the common coun- 
cil and board of aldermen, or the common council or board of 
trustees of such city or town may prescribe, and upon such terms 
as to compensation as such companies may mutually agree. And 
in case such companies can not agree as to such compensation 
within thirty days from the passage of such ordinance, then such 



513] ORGANIZATION AND POWERS. [§§4148,4149 

use shall be permitted upon such terms as to compensation as may 
be fixed and determined by an action instituted by either of such 
companies in the circuit court of the county in which such city or 
town may be situate. And no appeal shall operate to stay the use 
of such track or tracks, as fixed and determined in said action : 
And provided further, That the provisions of this act shall not apply 
to any suburban passenger railway company whose line extends 
more than ten miles beyond the corporate limits of such city or 
town. 

1. A street railway does not change its character hy reason of the fact that 
the cars are propelled by a cable and grip, or by electricity, instead of horses, 16 
Bull. 355; 22 Bull. 67; and the fact that the cable is run by steam does not make 
it a steam railway, 17 Bull. 265. Where the corporation reserves in its grant 
the right to allow the use of tracks to other companies, it may grant this right 
on such terms as it may fix, and it is no objection thereto that the first com- 
pany will thereby lose business, 10 Bull. 72. Council may grant right of way 
through a park, and reserve a rental therefor, 3 Bull. 551 ; and a private owner, 
over whose property a route has been established, may, by active participation 
in establishing the route and bidding for the right lo construct the road, be 
estopped to deny that his property is dedicated for the purpose, 17 Bull. 265. 
A street railway company chartered in another State can not acquire the right 
to run cars in Ohio by simply agreeing with a company authorized so to do 
that it may use its tracks, 2 Bull. 17. Council may lawfully establish two routes 
for the same road and allow grantee to choose either, 8 Rec. 612. 

2. Discretion of council to grant extensions of existing roads will not be 
controlled, 37 O. S. 556; they may be in any streets the council deems benefi- 
cial, and in any direction, 8 Rec. 61 2; and may be over the tracks of other com- 
panies, with proper consent, 37 O. S. 556. 

3. City or town authorities can not grant to a company the exclusive privi- 
lege of occupying all the streets of the city or town. But one company can not 
insist, under a grant from the city or town, on laying its track in a street oc- 
cupied by another company under an older grant, 127 Ind. 369; S. C. 24 N. E. 
Rep. 10, "54 ; 26 N. E. Rep. 893. 

[1861 S., p. 75. Approved June 4, 1861, and in force September 7, 1861.] 

Sec. 4148. Power to borrow money. 6. Such company may, 
from time to time, borrow such sums of money as may be neces- 
sary for completing or operating its railroad ; may issue and dis- 
pose of its bonds for any amount so borrowed, for such sums and 
for such rate of interest as is allowed by the laws of the State 
where the contract is made; and may mortgage its corporate 
property and franchises to secure any debt contracted by such 
company. 

Sec. 4149. Directors and officers. 7. The said subscribers to 
the stock of such contemplated road shall, as soon as the number 
named in the first section [§ 4143] shall have signed the same, 
proceed to the election of directors, who shall serve for the term 
of one year. The said directors shall elect the following officers, 
to wit: President, vice-president, secretary, and treasurer; whose 
term of office shall be for one year and until their successors are 
elected and qualified. 
33 



§§4150 4154] STREET RAILWAYS. [5 I4 

Sec, 4150. Annual meeting — Election. 8. There shall be an 
annual meeting of the stockholders held at the office of such com- 
pany, for the election of directors to serve for the ensuing year. 
Not less than three nor more than seven directors shall be chosen 
at such meeting of such stockholders, by ballot, and by a majority 
of the stockholders present in person and by proxy; and every 
such stockholder being so present shall be entitled to give one 
vote for every share of stock owned by him. No person shall be 
a director unless he shall be a stockholder, owning stock abso- 
lutely in his own right, and qualified to vote for directors at the 
election at which he shall be chosen. 

Sec. 4151. By-laws. 9. The directors of such company shall 
have power to make by-laws for the management and disposition 
of stock, property, and business affairs of such company not in- 
consistent with the laws of this State ; to prescribe the duties of 
officers, artificers, and servants that may be employed; for the 
appointment of all officers for carrying on all business within the 
objects and purposes of such company; and for regulating the 
running-time, fare, etc., of said road or roads. 

Sec. 4152. Stock transferable. 10. The stock of such com- 
pany shall be transferable in the manner prescribed by the by-laws 
of the company, and shall be considered personal property. 

Sec. 4153. Amendment or repea,!. 11. This act maybe amended 
or repealed at the discretion of the legislature. 

The legislature may authorize the laying of street railway track in a street, 
and it will not be such an additional burden on the easement as to entitle 
the adjoining lot-owner to damages. This act applies to Evansville, acting 
under a special charter, 78 Ind. 261. But if a city or town permit tracks to be 
maintained in a negligent condition, it may be liable to any one thereby person- 
ally injured, 122 Ind. 39. 

Sec. 4154. Consent of common council. 12. Nothing in this act 
contained shall be so construed as to take away from the common 
councils of incorporated cities the exclusive powers now exercised 
over the streets, highways, alleys, and bridges within the corpo- 
rate limits of such cities ; and all street-railroad companies which 
may be organized under the provisions of this act shall first obtain 
the consent of such common council to the location, survey, and 
construction of any street-railroad through or across the public 
streets of any city before the construction of the same shall be 
commenced. 



Ordinance Contract for Street Railway. 

— , Ind., 18—. 

This agreement, made and entered into this day of , 18 — , 

by and between the city of , of the county of , and State of Indiana, 

party of the first part, and the , a corporation duly organized under the 

laws of the Stale of Indiana, of the county ot , and State of Indiana, party 






515] ORGANIZATION AND POWERS. [§4154 

of the =:econd part, Witnesseth: That the said party of the first part, through 
the common council, does hereby authorize and empower the said party of the 
second part, its successors and assigns, and by the terms of tliis contract con- 
sent, permission, and authority are by said city hereby given, granted, and 
vested vinto said party of the second part, the right to lay a single or double 
track for an electric street-raihvay line, with all proper and convenient turnouts, 
switches, and side-tracks in, along, and upon the following streets and alleys of 

the citv of , State of Indiana, and to use, maintain, and operate the same 

tor and in consideration of, and subject to, the terms, conditions, and limitations 
hereinafter prescribed, namely : 

The right of wav, course, and direction of the tracks of the said party of the 
second part shall be as follows: Beginning on \dcscrihc course\. 

The right of said party of the second part to use the said street, from 

street to street, shall be confined to the construction of a single 

track, with all convenient sidings and turnouts. The said single line of tracks 
may be operated by the construction of the overhead system, the wire for 
which will be supported on wires at right angles to the center line of the street 
and supported by poles planted in and along the curb line of said streets above 
named. 

The said party of the second part shall have the right to use a double track 

on the following streets: . The right to use the overhead system on the 

streets last above named, where the double track is to be laid, shall be con- 
structed from a wire suspended on the cross arms of poles planted in the center 
of the streets and between the rails of the double tracks. 

In consideration of the above grant to the said party of the secbnd part and 
its successors the said party of the second part fully agrees and binds itself, its 
sviccessors and assigns, to the following terms and conditions, namely : 

That the said party of the second part shall pay to the treasurer of the city 
of , quarterly, the sum of one-fourth of one cent for each and every pas- 
senger carried on its cars. 

That the said party of the second part will put registers in every car and 
register thereon the fare of each individual as the fare is collected ; keep an 
accurate statement showing date, number of the car, and number of trips, and 
amount or number of fares collected on each trip on each car ; prepare a 
monthly statement of the same and exhibit to said 'treasurer such books, state- 
ments, and documents or papers whereby he may ascertain the amount due 

such city. The said payment to be made on the day of of each 

year during the existence of this grant, which shall begin on the — ^ day of 

'■ , 18 — , and end on the day of , 19 — . 

That the party of the second part shall use only such motors, cars, and 
equipments as are strictly first-class, and maintain the same in good condition, and 
provide for conductors and motor-men for all cars, keep the cars well painted 
and clean on the outside; provide for the heating and lighting of the -^ame by 
electricity, or fuel, or other means acceptable at all times to the common council ; 
provide all cars with the most improved wire life-guards, and maintain all such 
property in good and safe condition, all of which shall be subject to the ap- 
proval of said common council. 

The said party of the second part shall pay for the paving between all rails 
and for a distance of eighteen inches on the outside of the outside rails with the 
same material as is used on. the street on which its tracks are laid. That when 
any street on which the said party of the second part operates its cars s 
ordered to be improved by said common council, the party of the second part 
shall be assessed for so much of said street improvement as is included between 
Its tracks and for eighteen inches on the outside of the outer rails of said track 
or tracks, side-tracks and switches, and that it will promptly pay such assess- 
ment or assessments. The distance between the inside rails of double tracks 
shall not exceed six feet. • 

Said party of the second part shall keep the space between the rails of each 
track, side-track, and switch, and for eighteen inches on the outside of the out- 
side rail of each track, side-track, and switch, in good condition and repair, 
renewing the same from time to time whenever, in the judgment of said com- 
mon council, it becomes necessary. 

Said party of the second part shall not charge more than five cents fare for 
each passenger between its termini, or any fractional part thereof. 



§4154] STREET RAILWAYS. [516 

The poles shall be of iron or steel, and in form and shape acceptable to the 
common council- 
All rails used on such tracks shall be of the "V shape section, or such other 
section as shall be acceptable to such board. No rail shall be allowed that -will, 
in any manner, interfere with the tree and safe passage of vehicles. 

All cars shall be run from the terminus in the city of to the terminus 

m 

In and along the streets of the cit^- of the speed shall not exceed ten 

miles per hour, provided that at all crossings of the streets the speed shall be 
reduced to six miles per hour. 

All cars shall stop at the farther crossings for receiving and discharging pas- 
sengers. 

All rules for the operation of cars within the limits of the city of shall 

be approved by the common council before the same shall be or become oper- 
ative. 

The said partv of the first part shall not be held liable, independently of or 
iointly with the said party of the second part for any accidents that may occur 
through the operation of the road or cars of said party of the second part, 
w-hereby any injury or damage shall result to persons or property, and said 
partv of the second part hereby agrees to pay any judgment, with costs, which 
m.ay be taken against the party of the first part either alone or jointly with the 
said party of the second part, on account of any such injury or damage. 

At any time aiter the day of , 18 — , during the period of this 

grant, the common council mav require the said party of the second part to use 
the storage battery or any other approved svstem, upon six months' notice 
having been given, and upon the failure of the said party of the second part to 
comph' with the provisions of such notice, the common council may require 
or cause to be removed, all wires, poles, and tracks belonging to said party of 
the second part within or upon any street or alley of the city of , with- 
out, in any manner, being a trespasser upon the rights or property of said party 
of the second part, or becoming liable to them in damages for removing or 
causing to be removed such wires, poles and tracks, or either of them. 

Any improvement undertaken by, or in the name of, the said party of the 
first part, or by any contractor for said first party, for the improvement of any 
street, allev, sidewalk, or ci^'ossing. or the construction of any sewer or drain, 
shall not be impeded by said party of the. second part, it= agents or employes, 
but said party shall do all in its power to advance such improvement by protect- 
ing its tracks and poles, removing and relaying the same when it becomes neces- 
sary, at its own cost. The said party of the first part shall protect the said party 
of the second part as much as possible by seeing that the contractor for any 
work for it does not intentionally delay the same, to the detriment of the said 
party of the second part. 

Should it be necessary in the prosecution of any public Avork to stop entirely 
the operations of the road, it may be done by order of the common council, and 
in Avhich case the said party of the first part shall be held free from all claims 
for damages by reason of such delay to the business or trat^c of said party of the 
second part 

In times of danger from fire or other causes, the chief engineer of the fire 
department or any member of the common council, may order any wire or 
wires belonging to said party of the second part cut, and the electric current 
stopped until such danger is passed. The cars of said party of the second part 
shall not at any time be allowed to run over any hose belonging to the fire force 
of said party of the first part- 
All specifications for the construction of said electric street railway within 

the limits of the said city of , shall first be approved by the said common 

council before the construction of said street railway shall be begun 

Should said party of the second part at any time sell its property and rights 

herein granted to any other company operating other lines in the city of , 

or should said party of the second part, bv and through any further grants 
hereafter made to it by said party ot the lirst part, make any extensions, within 
said city, of such nature as to render a transfer of its passengers between such 
lines, within the judgment of said common council, desirable, then said com- 
pany, its successors^ or assigns, may be allowed to charge one cent additional 



517] EXTENSION BEYOND CITY OR TOWN. [§4155 

fare for each transfer. Whether said increase in fare be made or not, the said 
second party, its successors or assigns, sliall furnish passengers, so desiring it, a 
transfer ticket, which sliall be good for passage on any line or lines belonging 
to it during the day of its issuance. Such ticket shall be transferable and said 
party of the second part shall furnish the same transfer privileges from any line 
or lines it may operate to and all intervening points. 

The rights and privileges herein granted shall not be operative until the said 
party of the second part shall have fully constructed and equipped their road 
from to the corporation line of the city of , and until a car pro- 
pelled by electricity shall have passed over the entire distance between said 

corporation line and , which shall not be later than the day of 

, 18 — , which time may be extended in writing by said common council, 

if, in their opinion, it is deemed proper and advisable to do so. 

Said party of the second part shall file a bond in the sum of $25,000, to be ap- 
proved by the said common council, payable to the city of , conditioned 

upon the faithful performance by said party of the second part, their successors 
or assigns, at all times, of all the requirements of this contract, and which bond 
shall be renewed or increased to a sum not exceeding the sum of $50,000, when- 
ever said common council shall so require. 

Said road and the cars belonging to said party of the second part shall at all 
times be conducted in conformity with all existing laws and ordinances of the 
city of . 

In case the party of the second part, its successors or assigns, shall violate 
any of the terms, conditions or obligations herein contained, then and in that 
event all the rights and privileges herein granted shall be immediately forfeited 
and revert back to the said party of the first part, and this contract, in all things, 
shall be and become null and void, and the said party of the first part shall have 
the right to remove, or cause to be removed from the streets herein named, all 
poles, wires, tracks, side-tracks and switches, and all other property whatsoever 
belonging to said party of the second part, its successors or assigns, and a right 
of action for a breach of contract shall immediately accrue upon the bond of the 
said party of the secQnd part for any injury or damage arising out of said breach 
of contract upon the part of said party of the second part, its successors or 
assigns. 

To each of the terms, conditions, stipulations and requirements of this con- 
tract, the said common council, representing the city of , the party of the 

first ipart herein, and , president, and , secretary, representing the 

and , the party of the second part herein, fully agree and bind 

themselves, their successors and assigns. 



ARTICLE 2— EXTENSION BEYOND CITY OR TOWN. 

SEC. SEC. 

4155. Consent of cotmty board. 4158a, Electricity. 

4156, Consent of gravel-road compan}'. 4158^. Loan — Mortgag-e, 

4157, Protection and regulation, 4i5S(:. Title to property sold.- 

4158. Track on highway — Agreement — Pro- 41581^. Conditional sale, 

viso. 4i5S^. Acknowledgment and recording, 

[1879 S., p. 175. Approved and in force March 29, 1879.] 

Sec. 4155. Consent of county board, i. Any street or horse-car 
railway company organized under the laws of the State of Indiana, 
and operating such railway within any of the incorporated towns 
or cities of this State, and desiring to extend its road beyond such 
town or city limits on any state or county road or other public 
highway; or any other company organized under the laws of the 
State of Indiana, for similar purposes ; or any person or persons 
desiring to build a horse or street-railway outside of any city, on 
any public highway, — may do so, after procuring the consent of 
the board of county commissioners of such county. 



§§4156 — 41 SS^] STREET RAILWAYS. . [518 

Sec. 4156- Consent of gravel-road company. 2. If such road or 
highway be graveled or planked by a gravel or plank-road compa 
ny, such street or horse-car railway company shall also be required 
to procure the consent of such gravel or plank-road company, to 
run its road over such gravel or plank road ; which consent, when 
given, shall not be revoked by such gravel or plank-road com- 
pany. 

[186:5, p. 63. Approved and in force March 6, 1865.] 

Sec. 4157. Protection and regulation. 3. Sucli street or horse-car 
railway company operating such road outside of such town or city 
limits shall have the same protection, and, in its running, be gov 
erned by the same regulations prescribed for it within such town 
or city. 

[1879 S., p. 175. Approved and in force March 29, 1879. J 

Sec. 4158. Track on highway — Agreement — Proviso. 4. Such 
street or horse-car railway company shall, in all cases in which any 
road or highway shall be used by it for the purposes expressed in 
this act, locate its tracks on such part of such highway, as may be 
agreed upon between the parties m.aking such application for the 
use of such highway and the board of county commissioners of the 
county : Provided, That nothing in this act shall interfere with any 
vested right heretofore acquired by any street-railway company 
organized under the laws of the State of Indiana. 

[1S91, p. 68. Approved and in force March ^, 1S91.] 

Sec. 4158^. Use of electricity, i. Any street or horse railroad here- 
tofore or hereafter oi'ganized in this State, may, with the consent 
of the common council of the city in which such railroad or any 
part thereof is located and operated, and with the consent of the 
board of commissioners of the county where such railroad or any 
part- thereof is operated beyond the limits of such city, use electric- 
ity for motive power: Provided, That nothing in this act contained 
shall be so construed as to take away from the common councils 
of incorporated cities the exclusive powers now exercised over the 
streets, highways, alleys and bridges within the corporate limits 
of such cities, and all such street railroad companies shall first 
obtain the consent of such common council . for the operation by 
electricity of their cars along, through or across the public streets 
or alleys of any city before the operation by electricity of their 
cars shall be commenced : Provided, That in giving such consent 
such common council or board of county commissioners may do 
so upon such terms and conditions as they may see fit to impose. 

Sec. 4158/;'. Loan — Mortgage. 2. Any such company may, from 
time to time, borrow money for completing, operating or equip- 
ping its railroad ; may issue and dispose of its bonds for any 
amount so borrowed, and may mortgage its corporate property 
and franchises to secure such bonds or any contract by such com- 
pany. 



519 1 GENERAL PROVISIONS. [§§4158^: 4 1 59 

Sec. 4:15Sc. Title to property sold. 3. That in any written con- 
tract of, or for the sale of electrical equipment for such street rail- 
road, by the terms of which the purchase-money, in whole or in 
part, is to be paid in the future, it may be agreed that the title to 
the property so sold or contracted to be sold, shall not pass to or 
vest in the vendee, until the purchase-money shall have been fully 
paid, or that the vendor shall have and retain a lien thereon for the 
unpaid purchase-money, notwithstanding delivery thereof to and 
possession by the vendee. 

Sec. 4158^. Conditional sale. 4. In any written contract for the 
leasing or renting of such electrical equipment it shall be lawful to 
stipulate for a conditional sale thereof at the termination of such 
lease, and to stipulate that the rental received may, as paid or 
when paid in full, be applied and treated as purchase-money, and 
that the title to such property shall not vest in such lessee or 
vendee until the purchase-money shall have been paid in full, not- 
withstanding delivery to and possession by such lessee or vendee. 

Sec. 4158a Acknowledgment and recording. 5. Every such con 
tract specified in sections three and four shall be good, valid and 
effectual, both in law and equity, against all purchasers and cred- 
itors: Provided, First, The same shall be acknowledged by the 
vendee or lessee before some officer authorized by law to take 
acknowledgments of deeds; Second. Such instrument shall be re- 
corded in thirty days after such execution, in the miscellaneous 
record in the office of the recorder of the county in which such 
street railroad is located and operated. 

ARTICLE 3— GENERAL PROVISIONS. 



SEC. 



4159. Assessment — Limit — Proviso 4161^. Changing contracts. 

4160. Preferred slock. 4161c. Term of franchise limited. 

4161. Individual liability. ^i6id. Laws repealed. 
4i6i«. Extension ot franchise forbidden. 

[1867, p. 162. Approved and in force February 2S, 1867.] 

Sec. 4159. Assessment — Limit — Proviso, i. For the purpose 
of raising funds to pay any existing debts or liabilities of any 
street-railway company, due or to become due, the board of di- 
rectors of such company, with the approval of the stockholders 
owning a majority of the stock, may make a pro rata assessment 
against the stockholders, the aggregate of which shall not be 
greater than a sum equal to one-third the amount of stock ; and 
may make all needful rules and regulations in relation thereto, in- 
cluding provisions for the forfeiture, sale, and cancellation of the 
stock of any stockholder who shall fail to pay his pro rata assess- 
ment within thirty days after personal demand or notice given 
requiring such payment: Provided, That written or printed notice 
of said assessment shall be served on the stockholder in person, 
or presented at his or her usual or last place of residence, thirty 



§§ 4l60 4161 d^ STREET RAILWAYS. [52O 

days before the same is payable ; and the certificate of any notary- 
pubHc, attested by his official seal, shall be sufficient evidence of 
the service of said notice, or of its presentation at the residence 
of the stockholder, either within or without this State. 

Sec. 4160. Preferred stock. 2. For the purpose of providing means 
for the payment of its debts, for the construction of its roads, or for 
materials or equipments, such company may issue preferred stock to 
an amount not exceeding one-half the amount of its capital, with such 
priority over the remaining stock of such company, in the payment of 
dividends, as the directors of such company may determine and shall 
be approved by the stockholders owning a majority of such stock. 

Sec. 4161. Individual liability. 3. Stockholders in such com- 
pany shall be individually responsible for such company's liabilities 
or debts hereafter created, in the same manner, and to the same 
extent, and no greater, than stockholders in other railroad com- 
panies are individually liable under the general laws of this State. 

[1891, p. 481. Became a law by lapse of time, without the Governor's signature, 

March 10, 1891.] 

Sec. 4161<^. Extension of franchise forbidden, i. In all cities of 
fifty thousand and less than one hundred thousand inhabitants, 
according to the United States census of 1890, in the said State 
of Indiana, city councils and all other city authorities are pro- 
hibited from extending the franchise or franchises of street railway 
companies, or any other franchise of any other corporation cover- 
ing the use of the streets and alleys of said cities, or from chang- 
ing, altering, or in any way amending such franchise or franchises 
during the term for which they were originally granted by the city 
councils, or other authorities. 

This statute only applies to the city of Evansville. 

Sec. 4161(5. Changing contracts. 2. City councils and all other 
city authorities in cities of fifty thousand, and less than one hun- 
dred thousand population, according to the United States census 
of 1890, are also prohibited from extending, changing, altering or 
amending any contract or contracts made with any individual or 
corporation to serve the public with gas, electric lights, steam 
heating or any and all other conveniences and necessaries, whose 
service requires the use of the city's streets and alleys during the 
term for which said contract was originally made and entered into. 

Sec. 4161^. Term of franchise limited. 3. Cities of fifty thousand 
and less than one hundred thousand population, according to the 
United States census of 1890, shall not grant a franchise to any 
corporation or person or persons for any purpose for a period to 
exceed twenty-five (25) years from the date of such grant, nor for 
a less consideration than two per cent, per annum of the gross 
receipts of the business for which said franchise is used. 

Sec. 4161^. Laws repealed. 4. All laws and parts of laws in con- 
flict herewith are hereby repealed. 



CHAPTER XLV. 
WATER-WORKS COMPANIES. 



SEC. 



4200. How piirchasers may incorporate. 4203. Sinking--fiin(l — Preferred slock — Bond- 



4201. 



Franchises — Old stockholders. holders' vote. 



4202. Power to borrow money. 

[1S81, p. 60. Approved and in force February 4, 1881.] 

Sec. 4200. How purchasers may incorporate, i. In case of the 
sale of any water-works property within the State, by the judg- 
ment and decree of any court of competent jurisdiction within 
this State, the 'purchaser or purchasers thereof, the survivor or 
survivors, or associates or assigns, may form a corporation, by 
fiUng in the office of the secretary of state a certificate specifying 
the name and style of the corporation ; the number of directors, 
the names of the first directors, and the period of their services, 
not exceeding one year; the amount of its capital-stock, and the 
number of shares into which said capital is to be divided; and the 
city in and near which said corporation proposes to operate. The 
persons signing said certificate, and their successors, shall be a 
body corporate and politic, by the name in said certificate speci- 
fied, with power to sue and be sued, to contract and be contracted 
with, and to maintain and operate the water-works in said certifi- 
cate named, and transact all business connected with the same. 
A copy of such certificate, attested by the signature of the secre- 
tary of state or his deputy, shall, in all courts and places, be evi- 
dence of the due organization and existence of the said corporation 
and the matters in said certificate stated. 

Sec. 4201. Franchises — Old stockholders, 2. Such corporation 
shall possess all the powers, rights, privileges, immunities, and 
franchises in respect to the said water-works property, so pur- 
chased as aforesaid, and future acquisitions, and all of the real 
estate and personal property, choses in action, and contracts 
appertaining to the same, which were possessed or enjoyed by the 
corporation that owned or held said water-works property, previous 
to such sale, by virtue of the law of its organization ; and shall 
have no other powers, privileges, or franchises. Such powers, 

521 



§§ 4202, 4203] WATER-WORKS COMPANIES. [522 

privileges, and franchises shall be subject to the restrictions, limi- 
tations, and power of supervisory control contained in the laws 
under which such original organization was formed (namely, the 
act approved March 6, 1865). It shall have power, at any time 
after the formation of the corporation, as aforesaid, to assume any 
debts and liabilities of the former corporation, and to make such 
adjustment and settlement with any stockholder or stockholders, 
creditor or creditors of such former corporation as may be deemed 
expedient ; and, for such purpose, to use such portions of the bonds 
and stocks of said corporation as may be deemed advisable, and in 
such manner as said corporation may deem"proper: Provided, That 
all subscribers to the original stock of said water-works company, 
their heirs, executors, and administrators, by the acceptance or 
adoption of this act by any purchaser or purchasers of any such 
water-works, as above provided, shall be released and discharged 
from all their unpaid subscriptions which shall not have been pre- 
viously settled or arranged by agreement or compromise: And 
provided, further. That all holders of any such capital-stock which 
shall have been paid up, and all creditors of any such water-works 
company, shall have the right to accept and avail themselves of, 
any trusts, agreements, and provisions for re-capitalization, for and 
during the period of six months from and after si^ch sale. 

Sec. 4202. Power to borrow money. 3. Said corporation shall 
have power to make and issue bonds bearing such rates of inter- 
est, not exceeding six per cent, per annum, payable at such times 
and places and in such amount or amounts as it may deem ex- 
pedient; to sell and dispose of said bonds at such prices, and in 
such manner as it may deem proper; and, to secure the payment 
of any, bonds which it may make, issue, or assume to pay, by, 
mortgage or mortgages, deed or deeds of trust, of its water-works, 
or any' part thereof. Its real and personal property and franchises 
and all property of said corporation included in such mortgage or 
mortgages, deed or deeds of trust, whether then held or thereafter 
acquired, shall be subject to the operation and lien of such mort- 
gage or mortgages, deed or deeds of trust, and, in case of sale 
under the same, shall pass to and become vested in the purchaser 
or purchasers thereof, so as to enable them to form a corporation 
in the manner herein prescribed, and vest in such corporation all 
the faculties, powers, authorities, immunities, and franchises con- 
ferred by this act. 

Sec. 4203. Sinking-fund— Preferred stock— Bondholders' vote. 4. 

And the said corporation shall have power to establish sinking- 
funds for the payment of its liabilities, and to issue capital stock to 
such aggregate amount as may be deemed necessary, not exceeding 
the amount named in the certificate of organization; may make 
perferred stock ; may make and establish preference, in respect 
to dividends, in favor of one or more classes of stock over and above 



523] ORGANIZATION AND POWERS. [§4203 

other classes, and secure the same in such order and manner and to 
such extent as said corporation may deem expedient; and may 
confer upon the holders of any of the bonds which it may issue 
or assume to pay, the right to vote at all meetings of stockholders, 
not exceeding the number of votes such bondholder would be en- 
titled to cast if he held the same amount, represented by his 
bonds, in the capital-stock of the company, if deemed expedient; 
which right to vote, when once fixed, shall attach to and pass with 
said bonds, under such regulations as said corporation may pre- 
scribe, but shall not subject the holder to any assessment made by 
said company or to any liability for its debts or entitle any holder 
thereof to dividends. 



CHAPTER XLV^. 



WATER-WORKS IN TOWNS. 



4203«. 
4203^. 
4203c. 
4203(/. 

4203^. 





SEC. 


Powers and liabilities. 


4203/. 


Right of way. 


4203^. 
4203//. 


Proceedings'to acquire. 


Claimants. 


4203;. 


Unknown o\vners. 


42037. 



New proceedings. 
Interference with \vorks. 
Bonds — Borrowing money. 
Consent of town. 
Existing companies. 



[1889, p, 195. Approved and in force March 6, 1S89.] 

Sec. 4203(^. Powers and liabilities, i. Whenever any company 
incorporated under the provisions of chapter 35, R. S. , 1881, for 
the purpose of constructing and operating water-works in or for 
any incorporated town, shall have obtained and shall hold by fran- 
chise, ordinance or resolution from said town, the right and privi- 
lege of operating such water-works, and of laying necessary pipes, 
mains and conduits through the streets of said town, such corpora- 
tion shall possess the powers and be subject to the liabilities and 
restrictions expressed in the following: 

First. To cause such examinations and surveys as may be nec- 
essary to the selection of the most advantageous positions and 
locations for the source of supply, the pumping stations, the set- 
tling basins, the filtering basins or tanks, the storage reservoir, 
the supply mains, the delivery reservoir, tank or stand-pipes, and 
delivery mains, any or all of these, and the necessary lines'of pipe 
connecting them ; and for such purposes, by its officers, agents 
and servants to enter upon the lands and waters of any person, 
but subject to responsibility for all damages which they shall do 
thereto. 

Second. To receive, hold and take such voluntary grants and 
donations of real estate, money and other personal property, as 
shall be made to it, to aid in the construction, operation and main- 
tenance of such water-works ; but the real estate thus received by 
voluntary grants shall be held and used for the purposes of such 
grants only. 

Third. To purchase, and by voluntary grants and donations 
receive and take, and by its officers, agents and servants, enter 

524 



525] POWERS. [§4203^^ 

Upon, take possession of, hold and use all such real estate, water 
rights and other property as may be necessary for the construction 
and operation of said water-works, and other accommodations 
necessary to accomplish such construction and operation ; but not 
until the compensation ito be made therefor as agreed upon by the 
parties or ascertained as herewith prescribed shall have been paid 
to the owner or owners thereof, or deposited as hereinafter directed, 
unless the consent of such owner be given to enter possession. 

FourtJi. To determine and lay out the site for, construct and 
use the. pumping stations with necessary accommodations and 
roads thereto, the settling basins, the filtering basins or tanks, the 
storage reservoirs, the delivery reservoirs, tanks or stand pipes, 
and all the necessary accommodations thereto. 

Fifth. To lay necessary mains, conduits and pipes under and 
across any parcel of land, water course, road, highway or railroad, 
which the route thereof shall intersect, in such manner, however, 
as to afford security for life and property and to cause no inter- 
ference to traffic: Provided^ That such parcel of land, water 
course, road, highway or railroad shall be restored to the same 
condition, as far as possible, as it was in at the time the excavations 
for said mains and pipes were commenced. 

Sixth. To enter upon such lands under or across which the 
said mains, pipes and conduits are laid, and to re-excavate the 
same for the purpose of change or repair, but subject to responsi- 
bility for all damages which it shall do thereto. 

Seventh. To use and distribute water from any lake or natural 
stream of water in the county in which said water-works are to be 
built, and by permission from the board of commissioners of said 
county, to lay out and construct a dam across the same, upon 
paying the assessed damages caused thereby to the owner or own- 
ers so damaged. 

Eighth. To take up and change the route of the pipes, mains and 
conduits, to change the source of supply and remove the pumping 
stations, to vacate and reconstruct the various reservoirs, and to 
change the positions of the tanks, stand-pipes and other appurte- 
nances belonging to said water-works company, whenever.it shall 
be deemed necessary or advantageous to do so. [EL Sup. § 11 30.] 

The statute referred to in the above section can be found in the Revised 
Statutes of 1881 from § 3851 to § 3S79, which defines the manner in which 
such companies may be formed. 

Sec. 4203/;. Right of way. 2. In case any corporation gov- 
erned by this act is unable to agree for the purchase or lease of any 
real estate, right of way, easement and water privileges, and the 
use of water from any lake or natural stream of water, required for 
the construction and operation of such water-works and all the ap-' 
pendages thereto, then it shall be lawful for the said company to 
appropriate and acquire the title to the same in the manner and by 
the special proceedings prescribed in this act. [El. Sup. § iiji.] 



§ 



4203<:] WATER-WORKS IN TOWNS. [526 



Sec. 4203^. Proceedings to acqnire right of way. 3. Such com- 
pany shall forthwith deposit with the clerk of the circuit or other 
courts of record of the county in which such water-works is to be 
erected, a description of the rights and interests to be appropriated; 
and such lands, rights and interests shall belong to such company to 
use for the purpose specified, by making or tendering payment as 
hereinafter provided. The said company may, by its directors, 
purchase or lease of the owner any such lands, right of way, ease- 
ments and water privileges, and the use of water from any lake or 
natural stream of water, as shall be found necessary for the build- 
ing, maintaining and operating of such water- works ; or in case the 
same is owned by a person insane or an infant, at a price to be 
agreed upon by the regularly constituted guardian of said insane 
person or infant, if the same shall be approved by the court in 
which the description aforesaid shall be filed ; and on such agree- 
ment or approval, the owner or guardian, as the case may be, shall 
convey the premises or rights so purchased or leased in fee-simple 
or otherwise as the parties may agree, to such Avater-works com- 
pany, and the deed or contract when made shall be deemed valid 
inlaw. If the said company shall not agree with the owner or 
owners of such lands, rights and easements (or with his guardian 
if the owner be incapable of contracting) touching the damages 
sustained by appropriation, such company shall deliver to such 
owner or guardian, if within the county, a copy of such instru- 
ment of appropriation. If the owner (or 'his guardian, in case 
such owner is incapable of contracting) be unknown or do not re- 
side within the county, such company shall cause to be published 
in some newspaper of general 'circulation in the county, for the 
term of three weeks, an advertisement reciting the substance of 
such instrument of appropriation. Upon filing such act of ap- 
propriation and delivery of such copy or making such publication, 
the circuit court or other court of record in the county where the 
land or water lies, or any judge thereof in vacation, upon the ap- 
plication of either party, shall appoint by warrant, three disinter- 
ested freeholders of such county, to appraise the damages which 
the owners of the lands, water rights, easements, lakes, and natu- 
ral streams of water, may sustain by such appropriation. Such 
appraisers shall be duly sworn; they shall consider the injury 
which such owner may sustain by reason of such appropriation, 
and shall forthwith return their assessment of damages to the clerk 
of such court, setting forth the value of the property taken or in- 
jury done to the property (whicli they shall assess to the owner or 
owners separately), to be by him filed and recorded, and thereupon 
such company shall tender or cause to be tendered the amount thus 
assessed to the party, his agents or heirs, in Avhose favor such dam- 
ages are awarded, or shall pay the same in trust to the said clerk ; 
and on making such payment or tender thereof, it shall be lawful 
for such company to hold the interests in such lands and waters 



:?^/ 



] POWERS. [§§ 4203^ — 4203/ 



so appropriated. The cost of such award shall be paid by such 
company, and on notice by any party interested in said proceed- 
ings, the court may order payment thereof and enforce such pay- 
ment by execution. The award of said appraisers may be re- 
viewed by the circuit court or other court in which such proceed- 
ings may be had, on written exceptions filed by either party in 
the clerk's office, within ten days after the filing of such award, 
and the court shall make such order therein as right and justice 
may require, by ordering a new appraisement on good cause 
shown: Provided, That notwithstanding such appeal, such com- 
pany may take possession of the property therein described 
for the purpose for which it was condemned, and the subsequent 
proceedings on the appeal shall only affect the amount of compen- 
sation to be allowed. If, prior to the assessment, the said com- 
pany shall tender to such owner (or his guardian, if he be unable 
to contract), an amount equal to or greater than the award after- 
ward made, exclusive of costs, the cost of arbitration shall be paid 
equally, by such company and such owner or guardian. [El. Sup. 
§ 1132.] 

Sec. 4203(^. Claimants. 4. If there are adverse or conflicting 
claimants to the money, or any part of it, to be paid as compen- 
sation for" the property' taken, the court may direct the money to 
be paid into said court by said company, until it can determine 
who is entitled to the same and shall direct to whom the same shall 
be paid ; and may at its discretion, order a reference to ascertain the 
facts on which said determination and order are to be made. [El. 
Sup. § 1 133.] 

Sec. 4203^. Unknown owners. 5. The court shall appoint some 
competent attorney to appear and protect the rights of any party 
in interest who is unknown, or whose residence is unknown, and 
who has not appeared in the proceedings by an attorney or agent. 
The court shall also have power, at any time, to amend any defect 
or informality in any of the special proceedings authorized by this 
act as may be necessary, or to cause new parties to be added, and to 
direct such further notice to be given to any party in interest, as 
it deems proper ; and also to appoint other appraisers in the place 
of any who shall die, or refuse, or neglect, or are unable to serve, 
or who may leave, or be absent from the State. [El. Sup. § 1 134.] 

Sec. 4203/ New proceedings. 6. At any time after an attempt 
to acquire title or right by appraisal of damages or otherwise, if 
it shall be found that the title thereby attempted to be acquired is 
defective, the company may proceed anew, to acquire or perfect 
the same in the same manner as if no appraisal had been made. 
At any stage of such new proceedings, the court may authorize 
the corporation, if in possession, to continue in possession, and, if 
not in possession, to take possession of, and any such real estate, 



§§ 4203^ 42037] WATER-WORKS IN TOWNS. [528 

water, right of way and easements during the pendency and until 
the final conclusion of such new proceedings ; and may stay all 
actions and proceedings against the company or any officer, agent 
or workman of such company, on account thereof, on such com- 
pany paying into court a sufficient sum (as the court may direct) 
to pay the compensation therefor Avhen finally ascertained ; and in 
every such case the party interested in such property may con- 
duct the proceedings to a conclusion, if the company delay or omit 
to prosecute the same. [EL Sup. § 1135.] 

Sec. 4203^. Interference with works. 7. Nothing in this act shall 
be construed to grant the power to any water-works company to 
interfere with any pipes, drains or ditches used for drainage pur- 
poses without the consent of the owner thereof, or of the board of 
commissioners of the proper county when such drains or ditches 
are at the disposal of said board of commissioners, neither shall any 
artificial provision made for water by any person or corporation, 
or owned by any person, association or body be used, condemned 
or appropriated without the consent of the owner thereof. [El. 
Sup. § 1 136.] 

Sec. 4203A. Bonds— Borrowing money. 8. Such company may, 
from time to time, borrow such sums of money as it may deem 
necessary for completing its water-works, and issue and dispose of 
its bonds for any amounts so borrowed, for such sums at such rate 
of interest as may be lawful, and may secure the payment of such 
bonds, or any debts which it may contract, by deed of trust or 
mortgage on part or all of its corporate property, right of way, 
easements and franchise. [El. Sup. § 1137.] 

Sec. 4203/. Consent of town. 9. This act shall not grant the 
powers and privileges herein conferred to any corporation other than 
such as have, by ordinance or otherwise, obtained legal consent and 
full right of way for the operation of water-works and the laying of 
the necessary pipes, mains and conduits along and through the 
streets, alleys, avenues and public grounds of the town in which 
such water-works are to be operated, from the board of trustees of 
said town. [El. Sup. § 1138.] 

Sec. 4203;'. Existing* companies. 10. Any water-works com- 
pany heretofore incorporated and now existing, which holds or 
shall obtain franchise in this act, shall have the powers and privi- 
leges conveyed herein and be limited by the restrictions and lia- 
bilities set forth in this act. [El. Sup. § 1139.] 



4203/. 


Reorganization of existing compa 




nies. 


4203?. 


Liability of stockholders. 


4203''. 


Power of directors. 


42035. 


Effect of act. 



CHAPTER XLVB. 

JANALS USED FOR WATER-WORKS. 

SEC. SEC. 

4203X'. Completion of unfinished canals — Pur 

poses — Record. 
4203/. Articles of association. 
4203;«. Directors — Powers — Election, 
4203M. Collection of calls. 
42030. Right of way. 

[1S52 S., p. 93. Approved June 17, 1852, and in force November 6, 1852.] 

Sec. 4203/^. Completion of unfinished canals— Purposes — Eecord. 

I. Any and all persons, corporations, or associations, who may 
have purchased from the State of Indiana any of the unfinished 
canals of the State, or any part of either of them, and their success- 
ors and assigns, or any of them, may proceed to the completion 
of any such canal in whole or in part, or to the construction of any 
water-works or water-ways in connection therewith, either for navi- 
gation or hydraulic purposes or for the purpose of supplying cities 
or towns with water, upon complying with the regulations and 
subject to the restrictions in this act provided. But nothing in this 
act shall be so construed as to permit any such company to use 
such hydraulic works, or to take water from the canal for either of 
the purposes herein designated, unless such company shall first 
complete and place such canal in good navigable order from the 
point of commencement (or from the city of Indianapolis) of the 
Central canal to the point where it is proposed to construct 
hydraulic works, or take water for the supply of cities and towns 
as aforesaid : Provided^ however, That no association or company 
which may have succeeded, by purchase or otherwise, to the rights 
or interest of the State in any canal or the appurtenances thereunto 
belonging shall acquire or exercise any of the rights or powers 
specified in this act, until such association or company shall have 
executed to the State an additional bond, with such penalty and 
with such securities as may be designated and required by the 
governor, auditor, and treasurer of state, or either of them, to in- 
demnify the State against all liability on account of any leases here- 
tofore granted by the State of the water-power connected with 
5uch canal, if required so to do by the officers aforesaid or either 
of them ; and such additional bond shall be required unless the 
34 529 



§§4203/ — 4203^] CANALS USED FOR WATER-WORKS. [53O 

State is already sufficiently indemnified against or on account of 
such leases. [R. S. 1881, § 3580.] 

1. The act of 1859 in relation to the Central Canal Company, being local 
in its character, is omitted here. It will be found on page 167, Acts of 1S59, 
and took effect August 6, 1859. 

2. Construed, 53 Ind. 575. 

Sec. 4203/. Articles of association. 2. Any such persons, cor- 
poration, or association, or their successors or assigns, desirous of 
availing themselves of the provisions of this act, may do so by 
filing a copy of their articles of association in the office of the sec- 
retary of state, containing a statement of the name of such associa- 
tion, the amount of its capital stock, and the number of shares 
therein, and setting forth, fully, the objects for which such associa- 
tion is established. Such association shall thereupon be a body 
corporate and politic ; and, by its corporate name, may sue and be 
sued; may devise and use a corporate seal; may receive and hold, 
for the purposes of its association, any lands and property ; and, 
under its corporate seal, and the attestation of its presiding officer, 
may execute conveyances of lands, covenants, and powers of 
attorney, and, also, bonds of a denomination not less than five 
hundred dollars ; and v/henever such bonds are negotiated, they 
may bear such rate of interest as the association may direct, not 
exceeding the rate of interest allowed by law where the loan is 
made. [R. S. 1881, § 35,81.] 

Sec. 4203?;^. Directors — Powers — Election, 3. Such associa- 
tion may elect directors for the management of its affairs, in such 
manner as it may direct by its articles of association, and may 
confer upon them such powers in relation to the appointment of 
officers, and the conduct of the business of the association, as it 
may see fit: Provided, That in all elections by such association, 
each share of stock shall be entitled to one vote, which may be 
given in person or by proxy. [R. S. 1881, § 3582.] 

Sec. 4203;^. Collection of calls. 4. It shall be lav/ful for the 
directors to call in and demand from the stockholders, respectively, 
any installments of the stock by them subscribed, not exceeding 
five per cent, per month, under the penalty of forfeiture of the 
stock subscribed for, together with all previous payments made 
thereon, if payments shall not be made by the stockholders within 
sixty days after personal demand or notice of such call shall have 
been pubhshed in some newspaper of general circulation in the 
vicinity of such work. [R. S. 188 1, § 3583.] 

Sec. 42036?. Eight of way. 5. Any such association or corpora- 
tion shall have the right to take possession of, and appropriate to 
its own use or occupation, wholly or in part, for either of the pur- 
poses herein specified, sufficient lands for a right of way, upon 
first making payment or tender of payment therefor, or for the 



53 1] POWERS. [§§4203/ — 4203.? 

damages occasioned to the owner thereof, in accordance with the 
requirement of the constitution of this State ; and the value of 
such property so appropriated, or the damages occasioned to the 
owners of any such property, shall be assessed, awarded, and 
adjudged, and payment or tender of payment therefor made, as 
provided in the act entitled *'An act to provide for the incorpora- 
tion of railroad companies," [§§ 3906 to 3910]; and the proper 
courts shall have the same jurisdiction and powers, and shall cause 
the same proceedings to be had in every such case ; and the asso- 
ciations herein provided for shall, in all such cases, acquire all such 
rights in relation to the use, occupation, and ownership of lands, 
rights of way for their uses and purposes, as are provided in the 
said act in regard to associations organized for the construction of 
railroads, so far as the provisions of the said act can be made 
applicable to the purposes of this act. [R. S. 188 1, § 3584.] 

Sec. 4203/. Reorganization of existing companies. 6. Any 
existing corporation, organized for any two or more of the pur- 
poses contemplated in this act, may reorganize into separate asso- 
ciations, so that each shall embrace one or more of such objects ; 
and they may make such increase in their capital stock, and such 
modifications of the purposes of their organization, within the 
purview and subject to the general provisions of this act, as the 
stockholders may direct. [R. S. 1881, § 3585.] 

Sec. 4203^. Liability of stockholders. 7. The stockholders of 
any association formed under the provisions of this act shall be 
individually liable for all the liabilities of such association, to an 
amount equal to their respective shares in such association. [R. 
S. 18^ , § 3586.] 

Sec. 4203r. Power of directors. 8. In the construction of any 
of the unfinished canals of this State, it shall be lawful for the board 
of directors of such company to direct the separation of the vv^ater- 
works or manufacturing privileges from the navigation purposes of 
the same, and to make such disposition of such parts thereof, as 
the board of directors may deem best for the interests of the com- 
pany ; provided said disposition does not injure or impair the right 
and franchises of any other company. [R. S. 1881, § 3587.] 

Sec. 4203.y. Effect of act. 9. Nothing in this act shall be so 
construed as to affect, in any manner, the charter of any water- 
works company heretofore granted. [R. S. 1881, § 3588.] 



CHAPTER LIl. 
EDUCATION— COMMON SCHOOLS. 



ART. 

1. The Fund. 

2. Administration. 
2a. School Books. 

3. Taxation. 

^. Etncmeration. 

5. Apportionment of Revenue. 



6. Schools in Cities and To'W7is. 

7. Schools and School Houses. 

8. Teachers^ Institutes. 

9. Free Libraries. 

10. General Provisions. 



ARTICLE I— THE FUND. 



4325- 

4325«' 
4326, 

4327. 
43 2S. 
4329- 
4330. 
4331- 
4332- 

4333- 
4334- 
4335- 
4336. 
4337- 
4338. 
4339- 
4340- 
•f34i- 
4342- 
4343- 
4344- 

4346. 

4347- 

434S. 

4349- 

4350. 

4351- 

4352- 

43S2«. 

4352^. 

4352c. 

4352rf. 

4353 

4354 

4355 

4356 

4357 

4358^ 

4359' 

4360, 

4361, 

4362, 

4363 



What constitutes. 

Estrays and property adrift. 

Counties liable. 

Account of fund. 

Custody of lands — Report of income. 

Leasing lands. 

Divided school section. 

Boundaries of townships. 

School township, when county lines 

divide. 
Auditor's statement as to children. 
Auditor's duty. 
Account and distribution. 
Duties of the other auditor. 
Account — Re -adjustment. 
Power of trustee. 
Sale of school lands. 
Proceedings to sell. 
Ballots. 

Resiilt of election. 
Certificate of vote. 
Trustee's duty. 

Order and conduct of sale — Fee. 
Terms of sale — Timber. 
Forfeiture — Re-sale. 
Forfeiture, ho-w prevented. 
Forfeiture — Liability for waste. 
Suit for waste. 
Private sale. 
Re-appraisement. 
Advertisement of funds. 
Re-appraisement of forfeited lands. 
Appropriation by commissioners. 
Repeal of conflicting la^vs. 
Certificate of purchase. 
Rights of purchaser. 

Failure to make first payment — Penaltv. 
Assignments. 

Defective assignments — Proceedings. 
Loan of purchase-money. 
Payments. 
Lost certificate. 
Purchase-money, where paid. 
Duty of auditor. 
Deed. 



4364- 

4365- 
4366. 

4367- 
4368. 

4369- 
4369^, 

4370- 
4371- 
4372. 
4373- 
4374- 
4375- 
4376- 
4377- 
4378. 
4379- 
4380. 
4381. 
4382. 

4383. 

4383«' 

4384- 

Si: 

:i: 

4389- 
4390- 
4391- 
4392. 
4393- 
4394- 
4395- 
4396. 
4397- 
439S. 
4399- 
4400. 
4401. 
4402. 

4403- 
4404. 

4405- 



Sale^Legalization. 

Title, when complete. 

Sale had without vote. 

Failure of title. 

Lands of surplus revenue fund, 

sold. 
Loans of tund — Interest. 
Laws repealed. 
Auditor's duty. 
Appraisement. 
Duty of appraisers. 
Preferred borrowers. 
Limit of loan. 
Certificate as to liens. 
Oath of applicant. 
Time of loan. 
Limit of amount. 
Acknowledgments and oaths. 
Record of mortgages — Priority. 
Auditor's duty. 
Fees. 

Interest unpaid — Auditor's duty. 
Collections on default. 
Fund to be specified. 
Form of mortgage. 
Form of note. 
Warrant to borrower. 
Payments — Quietus. 
Indorsements and satisfaction. 
Suit for deficiency. 
Notice of sales. 
jNIanner of sale — Surplus. 
Auditor's bid. 
Sale of lands bid in. 
Deed by auditor. 
Statement of sales. 
Title in State without deed. 
Annual report. 
Duty of board. 
Board's report. 
Disposition of report. 
Apportionment of loans. 
Miscellaneous school-fund account 
Distribution and report. 
Penalty against auditor. 



how 



532 



533] FUND. [§4325 

[1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4325. What constitutes. 2. The funds heretofore known 
and designated as the surplus revenue fund, all funds heretofore 
appropriated to common schools, the saline fund, the bank-tax 
fund, the fund which has been derived or may be derived from the 
sale of county seminaries and the property belonging thereto, the 
moneys and property heretofore held for such seminaries, all fines 
assessed for breaches of the penal laws of the State, all forfeitures 
which may accrue, all lands and other estate which shall escheat 
to the State for want of heirs or kindred entitled to the inheritance 
thereof, all" lands which have been granted, or may be granted 
hereafter, to the State, when no special object is expressed in the 
grant, the proceeds of the sales of the swamp lands granted to the 
State of Indiana by the act of Congress of September, 1850, the 
taxes v/hich may be assessed from time to time upon the property 
of corporations for common school purposes, and the fund arising 
from the one hundred and fourteenth section of the charter of the 
State Bank of Indiana, shall be denominated the ** common school 
fund." The fund derived from the sale of congressional township 
school lands, and the unsold congressional township school lands, 
at the reasonable value thereof, shall be denominated the ** con- 
gressional township school fund," and shall never be diminished in 
amount, the income of which, together with the taxes mentioned 
and specified in the first section of this act [§ 4465], the money 
and income derived from licenses for the sale of intoxicating 
liquors, and unclaimed fees, as provided by law, shall be denom- 
inated the ''school revenue for tuition," the whole of which is 
hereby appropriated, and shall be applied exclusively to furnishing 
tuition to the common schools of the State, without any deduction 
for the expense of collection or disbursement. 

1. T1V0 distinct funds. This section, in conformity with the decisions cited 
iinder § 183, provides that there shall be two distinct funds, the " common school 
fund " and the " congressional township school fund," which must be kept apart 
and managed separately (§ 4327). Under the former title are consolidated all 
the funds named in the constitution, except the congressional township fund, 
and in addition thereto "all funds heretofore appropriated to common schools," 
referring to all moneys arising from the sale of estray animals, and property 
taken up adrift, which were, by an act approved January 15, 1844, transferred to 
the common school fund of the county to be ratably apportioned among the 
several school districts thereof, § 4325rt. Neither of these funds shall ever be 
diminished, for the term common school fund in the constitution includes both, 
§ 183, notes. 

2. Revemies. Of the " school revenue for tuition " the interest on the com- 
mon school fund, the proceeds of the state tax, and the unclaimed fees are paid 
into the state treasury and apportioned to the counties by the superintendent 
of public instruction semi-annually on the basis of school population, §1^ 4477- 
4482. The revenues derived from the congressional township fund and from 
county liquor licenses are distributed by the county auditors to the townships 
and counties to which they respectively belong, § 4486 and R. S. 1S81, '^ 5316; 
70 Ind. 241. 

3. Fees of officers. No deduction shall be made from the school revenues 
for expense of collection or disbursement, but the county auditors shall receive 
from the general funds of the counties the amount of one per cent, on the per- 



§§ 4325<^. 4326] EDUCATION. [534 

manent school funds held in trust by their several counties, as compensation 
for the management of them, R. S. 1881, § 5909; 53 Ind. 123, § 1S8, 7iotes. 

4. Illegal deductions recoverable. By the school law of 1865 the income of 
the common school fund and the taxes levied and collected for tuition are re- 
quired to be applied exclusively to furnishing tuition in the com.mon schools of 
the State. Provision is made for payment out of the county fund of the fees of 
officers for collecting, managing and dispensing the tuition fund (R. S. 1881, 
§ § 5909? 5927, 5928 ) . From the constitutional and statutory provisions it is mam - 
fest that, with reference to common school funds, the State and county act 
simply as trustees for the benefit of the schools of the State. The county can 
not repudiate or disavow its trust, and where it misappropriates common school 
funds, no failure of the proper officers to bring suit for any length of time after 
notice of the misappropriation can be set up by way of limitation to the action 
to the prejudice of the beneficiaries of the trust, § 188, notes. 

5. Fines. Fines imposed for contempts of courts belong to the school 
fund, 63 Ind. 81. 

5. Mandamus. The proper application of trust funds may be enforced by 
mandate, 96 Ind. 279. 

6. Liquor licenses. Funds derived from liquor licenses are diverted from 
this fund by a later act [R. S. 1S81, § 5316], 70 Ind. 241. Compare 53 Ind, 123. 
See also § 4254. 

7. Sale of escheat lands. By an act of 1SS9 (p. 307 ; El. Sup. §§ 1644 to 
1656), provision is made for the sale of escheated and other lands and collecting, 
the rents thereon, and turning the proceeds into the common school fund. An 
act of 1883 (p. 98; El. Sup. §§ 429 to 431) also authorized the board of county 
commissioners to sell escheated lands. 

[1844, p. 86« Approved and in force January 15, 1S44.] 

Sec. 4325^. Estrays and property adrift, i. All moneys aris- 
ing from the sale of estray animals and property taken up adrift, so 
soon as the same shall have vested absolutely in any county, shall 
be, by the proper officers, transferred to the common school fund 
of the county, and shall be ratably apportioned amongst the sev- 
eral school districts thereof. 

The above section is in force, 92 Ind. 353. 

Sec. 4336. CoTinties liable. 3. The several counties of this 
State shall be held liable for the preservation of so much of said 
fund as is intrusted or may have been intrusted to them, and for 
the payment of the annual interest thereon, at the rate established 
by law, the payment of which interest shall be full and complete 
every year, and shall so appear in the auditor's report to the super- 
intendent of pubHc instruction ; and the said superintendent shall, 
at any time, when he discovers, from the report, or otherwise, that 
there is a deficit in the amount collected, for want of prompt col- 
lection, or otherwise, direct the attention of the board of county 
commissioners and the county auditor to the fact, and said board 
of commissioners are hereby authorized and required to provide for 
such deficit in their respective counties. 

1. Interest. This section is designed to carry out the requirements of the 
constitution, § 187. The interest on the school funds is at the rate of six per 
cent, § 4369. 

2. Deficits made up. The board of county commissioners is required to 
make up losses to both the principal and interest of the funds, at their June 
meeting (§ 4399), by authorizing the auditor to draw a warrant for the amount 



535] CUSTODY AND LEASE OF LANDS. [§§432/, 4328 

of the deficit upon the general fund of the county in favor of the particular 
school fund found deficient, and upon failure of the board so to act they become 
liable to an action in the name of the State upon the relation of the superintend- 
ent of public instruction, who may notify the proper prosecuting attorney to 
bring such action ; or the attorney general may bring the action upon his own 
relation, 92 Ind. 353. 

3. Money wnloaned. If the monej' is unloaned, the county must pay the in- 
terest that would have accrued thereon if loaned, 122 Ind. 333. 

4, Enhmicing the fund. It never was the intention of the constitution that 
the school fund entrusted to a county should be enhanced at the expense of the 
countv; but simply that the fund should be preserved intact, and the interest 
annually paid, 122 Ind. 333. 

Sec. 4327. Account of fund. 151. The county auditors of the 
several counties of this State shall, immediately upon the taking 
effect of this act, open an account upon their books with each of 
the congressional townships of their respective counties whose 
funds are managed by them, and transfer to such account, from 
the common school fund account, the principal of the congres- 
sional township fund, as it existed before its consolidation with the 
common school fund, and shall thereafter keep a separate account 
of the principal and interest of the congressional township fund of 
each township. 

1. School section. The fund derived from the sale of the " school section" 
can not be diverted by legislation from the use of the inhabitants of the con- 
gressional township. It was a grant to them by the United States, 6 Ind. 83 ; 
7 id. 570, 636, 22 How. 56; 44 id. 38. 

2. Proceeds of la7ids. When the school sections have been sold the pro- 
ceeds of the sale are managed by the county auditor, and the interest thereon 
distributed by him through the countv treasury to the proper school trustees, 
44 Ind. 38; S. C. 94 U. S. 792. See § 187, 7iotes. 

[1873, P- 79' Approved and in force March 7, 1873.] 

Sec. 4328. Custody of lands — E,eport of income. 44. The custody 
and care of all lands belonging to the congressional township fund 
shall be with the trustee of the civil township in which the same 
shall be situated; who shall report, annually, to the auditor, by 
the fourth Monday in March, the annual income derived therefrom, 
to the township. And the report shall embrace a fully itemized 
statement of his rent account of such lands ; to whom and for what 
amount the same was rented to each tenant ; and whether the 
rents have been collected or not ; and if any portion has not been 
collected, he should state fully the reasons why the same has not 
been collected. Any trustee who has heretofore failed and neg- 
lected to so report shall embrace in his first report such itemized 
statement and showing for each preceding year not so reported, 
whether by himself or his predecessors ; and the amount of school 
funds for any year, to which such township might otherwise be 
entitled, shall be withheld, and not paid over to such trustee, if 
the rental value of such lands for such terms shall equal or exceed 
the township's otherwise portion of the school fund; and it shall 
be the duty of such trustee to pay into the county treasury all 
rents collected and reported by him as aforesaid. 



§§4329^4330] EDUCATION. [536 

1. Rents distributed. The rents of school lands shall be paid into the 
county treasury, to be distributed by the auditor together with, and in the same 
manner as, the interest on the congressional township fund. And a township 
trustee who fails to pay the rents into the county treasury, as therein required, 
is, with his county, liable on his bond for the amount, with ten per cent, dam- 
ages, in a suit in the name of the State on relation of the board of commission- 
ers, 44 Ind. 38; 94 U. S. 192; §§ 187, 188. 

2. Must he f aid in full. The trustee can not withhold a balance of rent on 
hand at the date of settlement, to be expended in repairs during the ensuing 
year. Busk irk, Atty. Gen. 

3. The eqtializatio7i of reve7iue among townships by taking into considera- 
tion the congressional township revenue, is constitutional, § 44S6, note i. 

4. Adverse possession. The lands were selected by the secretary of the 
treasury for school purposes, under the act of Congress of May 20, 1826 (U. S. 
Stat, at large 4, vol. 179), the title vested in the inhabitants of that congressional 
township, and a cause of action to recover the possession of the lands from one 
holding them adversely accrued at that time. ' The fact that the claimant 
entered into possession of the land while the title was in the United States did 
not prevent his holding from becoming adverse to the township as soon as the 
title vested in it, 29 Ind, 70. 

5. Lands substituted. Where land originally granted to the State for 
school purposes became unavailable, and other lands were substituted, it must 
be shown that such substituted lands Avere actually selected by the treasury, as 
required by the statute of the United States, in an action of ejectment v/hen 
title must be traced to the United States ; for without such selection no title 
passed, loi Ind. 366. 

6. Drainage. A congressional section can not be assessed with benefits in 
the construction of a public ditch, 26 N. E. Rep. 156; S. C. 126 Ind. 261. 

[1865. Approved and in force March 6, 1865.] 

Sec. 4329. Leasing' lands. 45. He shall have power, when direct- 
ed so to do by a vote, or by the written direction of a majority of 
the voters of the congressional township to which the same belongs, 
to lease such lands for any term not exceeding seven years, reserv- 
ing rents, payable in money, property, or improvements upon the 
land, as may be directed by the majority of such voters. 

1. Voters. The voters here intended are such persons as are entitled to 
vote at general and township elections, as defined in the constitution, § 84. The 
election is held in accordance with the general election law, § 47107. 

2. The lessee of school land, the' rental of which he was to pay in perma- 
nent im.provements on the land, contracted for and proceeded to construct a 
building which he had calculated would amount to the same as the rent for the 
rest of the term; he discovered when work was begun that it would cost more, 
and so informed the trustee, who promised to extend the lease at the expiration 
of the term; at the expiration of the term the voters of the township elected to 
sell the land and it was sold ; the trustee issued to the tenant a certificate for 
the amount he had expended over and above the rent, showing the township 
indebted to him in that sum. Held, that no authority is given trustees to 
incur debts in improving school lands, and, as the tenant was bound to know 
this the certificate could not be enforced against the township, 27 N. E. Rep. 
439- 

Sec. 4330. Divided school section. 46. When the sixteenth sec- 
tion, or the section which may be granted in lieu thereof, shall be 
divided by, a county or civil township line, or where the substi- 
tuted section lies in any other county in the State, the voters of 
the congressional township to which the same belongs shall desig- 
nate, by vote or by the written direction of a majority, the trustee 



537] CUSTODY AND LEASE OF LANDS. [§§ 4331 4334 

of one of the civil townships including a part of said section, to 
have the care and custody of said section, and to carry out the 
directions of the voters of the township, in relation thereto ; and 
the trustee so designated shall have the same powers and perform 
the same duties as if the entire section was situated within the 
limits of the civil township, and receive from the county treasurer 
the revenue derived from funds accrued from said sale. 

Sec, 4331. Sonndaries of townships. 148. The county commission- 
ers of each county are required to conform the boundary of their 
civil townships to those of congressional townships, so far as it is 
practicable to do so. 

The countv commissioners have full power to determine the boundaries of 
civil townships. R. S. 1881, § 5987. 

[1877 S., p. 66. Approved and in force March 12, 1877.] 

Sec. 4332. School township, when county lines divide, i. Where 
county lines divide a congressional township, the proper officer in 
the county in which the congressional school lands are situated, or 
would be situated if unsold, shall control such lands and the funds 
arising therefrom, as in this act is provided. 

These six sections (4332-4337) provide for the transfer from one county to 
another of the principal of the fund belonging to congressional townships 
divided bj county lines, so that the share of each part of such township may be 
controlled and managed by the auditor of the county in which such part lies. 
This transfer of the fund is intended to put an end to the system by which an 
auditor of one county is obliged semi-annually to apportion congressional town- 
ship revenue between the parts of townships lying in his own and other 
counties, as provided.for by §§ 4432 and 4480, and which proved very unsatisfac- 
tory in its v>rorking. — Holcombe, Supt. 

Sec. 4333. Auditor's statement as to children. 2. When the enu- 
meration is made of children, under the school laws, the auditor of 
each county shall furnish to the auditor of the other a statement 
showing the number of children in each congressional township; 
and to enable him to do this correctly, the person or officer mak- 
ing the enumeration shall correctly state) the number of children in 
the congressional township so divided by county lines. 

See § 4472, 

Seg. 4334. Auditor's duty. 3. The auditor of the county having 
control of the fund shall open an account with the other county 
as to each congressional township, and credit said other county with 
all money on hand, all securities for lands sold, and, if any lands 
be unsold, with the proceeds when sold ; and, from time to time, 
as money comes in, shall credit such county with such money — 
that is to say, shall divide such money pro rata on the basis of 
such enumeration, and enter the credit; and shall payover such 
money, be it little or much, to the treasurer of such other county, 
file his receipt with the auditor, and take a quietus ; and so corr- 
tinue until the whole portion due such other county is paid over. 



1 



§§ 4335—43371 education. [538 

Such payments shall be made quarterly, to correspond with the 
fiscal year. 

1. Recommendatio7i. It is recommended that no payments be made be- 
tween May ist and July ist, thus allowing the auditor of counties to receive all 
remittances in time to include them in the June reports of the auditor and com- 
missioners to the superintendent of public instruction. — Holcombe, Su;pt. 

2, Loan to auditor. Where the auditor of a county drew a warrant in his 
own favor for one thousand dollars, as a pretended loan from the congressional 
township school fund, and received the money, a cause of action, it Vv-as held, at 
once accrued on his bond, and a'suit thereon, commenced more than three years 
thereafter, was held barred. Such a loan^ it was held, is void, although all the 
requirements of the statute be observed. The auditor is not a trustee of the 
congressional township school fund, 74 Ind. 181. But this case was afterwards 
limited, so as to hold that the loan was only voidable, if the county so choose to 
regard it; but void, if the county willed it to so be. If the county sees fit to 
foreclose the mortgage, it may so do, and enforce it, both against the auditor 
and those claiming under him, as a means of reimbursing the fund, looking only 
to the auditor and his sureties for any deficiency that may remain after the 
mortgaged land has been exhausted, 99 Ind. 77 ; loi Ind. i, 532. The want of 
authority in an auditor to make a loan to himself constitutes no defense for him 
or any other person made a party to a forclosvire of proceedings of the mort- 
gage; and the mortgage remains a subsisting security for the loan against the 
mortgagor or even his vendee for value and without notice, notwithstanding the 
reimbursement of the school fund out of the county revenues ; and also not- 
withstanding an entry on the margin of record of the refunding, and the sur- 
render of the mortgage without indorsement of satisfaction thereon, and v\-ithout 
satisfaction of record, loi Ind. 532. Such a mortgage draws the same i7iterest 
after foreclosure as before maturity, loi Ind. i. 

Sec. 4335. Account and distribution. 4. Such auditor of the 
county controlling- such lands and fund shall also open an account 
with such lands and with the township in his own county divided 
by county line, and shall debit and credit such accounts as he 
receives money or securities from sales or collections from lands 
forfeited and re-sold, and all expenses in full and regular order of 
entry and accounting, so he can tell, at any time, the condition of 
the lands, funds, and securities. He shall collect in, as fast as 
possible, all moneys outstanding, make proper distribution as per 
enumeration, and credit the proper account in said county, and 
continue to pay over to the other county, as above provided, until 
each county has its proper proportion of said funds. 

Sec. 4336. Buties of the other auditor. 5. The auditor of such 
other county shall open an account with the proper township in 
his county, and credit such fund as fast as received ; and, when in 
sufficient amount, shall loan the same as now required by law. 
Both auditors shall make a statement of the condition of the fund 
annually, at the end of the proper fiscal year, and file one copy 
with the superintendent of public instruction, lay one before the 
county commissioners (which latter shall be spread upon their 
record), and both shall be sworn to by the auditor. 

Sec. 4337. Account — Ee-adjustment. 6. The process contem- 
plated by this act shall continue so long as any lands remain 
unsold, or any securities are uncollected, and until each county 



539] SALE OF SCHOOL LANDS. [§§ 4338 4342 

shall have become possessed of its proper share of such fund in 
money, when the accounts here required to be kept shall be closed 
and reported as aforesaid: Provided, That in the 3^ear 1890, and 
every two 3^ears thereafter, there shall be a re-adjustment of said 
fund belonging to such congressional township, upon the 'basis of 
the number of children enumerated in each part of such congres- 
sional township, as hereinbefore provided ; ' and the auditor having 
a surplus of such fund, according to such basis, shall pay to the 
treasurer of the county interested the amount of money due said 
county upon the per capita basis then existing. For the services 
here provided for, the auditor shall be allowed the same fees for 
records, certificates, and other labor, as is allowed by law for other 
similar services. 

1. Explanatio7i. The process contemplated by the foregoing sections 
(4432-4337) began in 1877 and will probably be completed bj 1890, when those 
sections will become obsolete and the provisions of this section will come into 
effect. — HoJcoinbe^ Stcpt, 

2. The auditor's fees must be paid out of the general fund of the oountj, 
§ 4325, fiote 3. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4338. Power of trustee. 47. The proper trustee shall have 
all the rights and powers of a landlord, in his official name, in 
coercing fulfillment of contracts relating to such lands, and pre- 
venting waste or dam.age, or for the recovery of the same when 
committed. 

Sec. 4339. Bale of school lands. 48. At any time when five 
voters of any congressional township shall, by petition to the 
trustee having charge of the school lands belonging tq such town- 
ship, set forth their desire for the sale of all or any part of the 
school land, the trustee shall give pubHc notice, in five public 
places in such township, of the time and place in such township 
when and where a balloting will be Had to determine whether the 
lands shall be sold as petitioned for or not ; which notice shall be 
given at least twenty days before the time specified therein. 

Voters, The voters here referred to are such as are entitled to vote at gen- 
eral and township elections, bj the constitution, § 84. See § 4366. 

Sec. 4340. Proceedings to sell. 49. A copy of such petition 
shall be entered on the book containing the record of the proceed- 
ing of such trustee ; and his action thereon shall, also, be recorded. 

Sec. 4341. Ballots. 50. If a voter favor the sale of such lands, 
he shall write on his ballot the word *'Sale"; if he oppose the 
sale, he shall write the words *' No sale." 

Sec. 4342. Eesult of election. 51. No sale shall be allowed 
unless a majority of all the votes cast at such election shall be in 
favor of such sale ; nor unless the number of votes constituting 
such majority shall exceed fifteen. 



§§ 4343— 4345J education. [540 

Sec. 4343. Certificate of vote. 52. The trustee shall attend at the 
time and place specified, and shall make out a certificate showing 
the number of votes given for and against such sale ; which shall 
be signed by him and filed in his office ; and he shall enter the 
same upon his record-book. 

Sec. 4344. Trustee's duty. 53. Said trustee, if satisfied that a 
majority of all, and more than fifteen, voters have voted for such 
sale, shall enter the same on his record-book, and proceed' — 

First. To divide the lands, so voted to be sold, into such lots 
as will secure the best price. 

Second. To affix a minimum price to each lot, not less than one 
dollar and twenty-five cents per acre, below which it shall not be 
sold. 

Third. To certify such division and appraisement to the proper 
county auditor, together with a copy of all his proceedings in 
relation to the sale of said lands. 

1. Re-sale of land. Land having been sold at the minimum price, and 
forfeited to the township by failure of purchaser to make deferred payments, 
vests absolutely in the township, and a re-sale of it must be governed by all the 
requirements of this section. — Woolleji, Atty. Gcji. 

2. But any excess above the amount owing under the first appraisement and 
sale shall be paid to the first purchaser or his representatives, § 4347. 

3. W/ien petition not necessary. Where school land was sold in 1847, and 
for non-payment of interest due on the purchase-money, was again sold in 1883, 
four weeks' notice of the latter sale was held sufficient under the law then in 
force, and a petition from the voters of the township was not necessary, such 
petition being required only when the land is first offered for sale, no Ind. 519. 

Sec. 4345. Order and conduct of sale — Fee. 54. Such certificate 
and return shall, by such auditor, be laid before the board of county 
commissioners, at their first, meeting thereafter; and said board, if 
satisfied that the requirements of the law have been substantially 
complied with, shalUdirect such lands to be sold; which sale shall 
be conducted as follows : 

First. It shall be made by the auditor and treasurer. 

Second. Four weeks' notice of the same shall be given, by 
posting notices thereof in three public places of the township 
where the land is situated, and at the court-house door, and by 
publication in a newspaper printed in said county, if any — other- 
wise, in a newspaper of any county in the State situated nearest 
thereto. The sale shall be made by the auditor, at public auction, 
at the door of the court-house of the county in which the land 
is situated, and the treasurer shall take an account thereof; and 
each of the said officers, for making such sale, shall receive a fee 
of one dollar, to be paid by the purchaser. 

1. Board must act. If the law has been complied with, the board may be 
compelled by writ of mandate to order the sale. The order maj' be made at a 
special session. The land can not be sold below the appraised value, of which 
the purchaser must take notice. 

2. Place and manner of sale. The sale must be at the door of the court- 
house of the county Avherein the land lies, at public auction, no Ind. 519. 



54l] SALE OF SCHOOL LANDS. [§§ 4346, 434/ 

[1875, p. 134. Approved and in force March 9, 1S75.] 

Sec. 4346. Terms of sale — Timber. 55. One-fourth of the pur- 
chase-money shall be paid in hand and the interest for the residue 
for one year in advance, and the residue in ten years from such 
sale, with like interest annually in advance ; and deferred pay- 
ments shall be regarded as a part of the congressional township 
school fund, and reported as such by the auditor to the superin- 
tendent of public instruction : Provided, That when one-fourth 
part or more of the value of the Jands so sold, at the time of such 
sale, shall consist of the timber growing thereon, the terms of sale 
in such case miay be as follows, viz.: At least one-half of the pur- 
chase-money cash in hand, and interest for the residue for one 
year in advance, and the residue in annual payments in not exceed- 
ing ten years from such sale, w4th like interest annually in ad- 
vance ; and in such case the terms of sale shall be set forth in the 
notice provided for in the preceding section ; And Provided, fur- 
ther, That whenever the purchaser of any such land shall be pro- 
ceeding to cut or remove, or threaten to cut or remove, from such 
lands, so sold, timber growing or being thereon, to such an extent 
that the land, after the cutting or removal of such timber, shall 
not be equal in value to the amount of purchase-money, with in- 
terest then remaining unpaid, it shall be the duty of the trustee 
of the civil township in which such land is situated (and he is 
hereby authorized and empowered) to commence and maintain an 
action, in thb name of such township, in the circuit court of the 
county, to restrain and enjoin the further cutting or removal of 
such timber. 

1. Iiitercst — Cash sales. Interest on deferred payments must be at the rate 
of eight per cent., R. S. 1881, § 5205. But sales may be made for cash, § 4359. 
Not so in case of lands forfeited to the school fund, § 4393, note i. 

2. I'lijiinction. It is the duty of the prosecuting attorney to bring the suit 
of injunction, at the instance of the trustee. — Baldzuitt, Atty. Gen. 

3. Redemption. A purchaser of school lands having made default in the 
payment of interest on the purchase-money, the lands were re-sold. By the law 
in force at the time of his purchase, a defaulting purchaser had a right to re- 
deem within one year after sale ; by that in force at the time of the sale, and 
at the time of the default, a delinquent purchaser could redeem at any time 
before the sale, but not after. It was held that the right to redeem vv'as gov- 
erned by the latter law, 31 Ind. 11. 

4. County liable for interest. Tke county is chargeable with interest on 
the entire amount of the price of the land, and the default of a purchaser of the 
land in paying deferred installments, and the consequent forfeiture of the land 
to the school fund, does not relieve the county of liability for interest on the 
full amount, 120 Ind. 442. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4347. Forfeiture — Re-sale. 57. On failure to pay such an- 
nual interest when it becomes due, the contract shall become 
forfeited, and the land shall immediately revert to the township; 
and the auditor and treasurer shall proceed, forthwith, again to sell 
the same, in like manner and on the terni>s above specified. If, on 
such second sale, such land shall produce more than sufficient to 



§§4348—4352^] EDUCATION. [542 

pay the sum owing therefor, with interest and costs and five per 
cent, damages, the residue shall, when collected, be paid over to 
the first purchaser or his legal representative. 

1. See §§ 4344 and 4394. 

2. Damages. The damages mentioned in this section and in §§ 4390 and 
4393 belong to the fund from -which the loan was made. — Baldxvin., Atty. Gen. 

3. Effect of forfeiture. A forfeiture under this section does not divest the 
title of the purchaser to the real estate, but simplj authorizes the State to sell 
it for its own reimbursement, the surplus going to the purchaser, 124 Ind. 560. 

Sec. 4348. Forfeiture, how prevented. 57. At any time before 
the sale, payment of the interest due and all costs, together with 
two per centum damages on the principal sum and interest due 
and owing for said land, shall prevent such sale, and revive the 
original contract. 

Sec. 4349. Forfeiture — Liability for waste. 58. In case of such 
forfeiture, the original purchaser may be sued for waste or unnec- 
essary injury done to such land. 

Sec. 4350. Suit for waste. 59. Such suit shall be prosecuted by 
the auditor, in the name of the State, for the use of the proper 
congressional township. 

Sec. 4351. Private sale. 60. When any land offered for sale at 
public auction shall remain unsold, the county auditor may dis- 
pose of the same at private sale for the best price that can be had 
therefor, not being less than the minimum price affixed thereto. 

This section authorizes a private sale only where the land has been offered 
for sale at public auction and remains unsold, no Ind. 519. 

Sec. 4352. Ee-appraisement, 61. After the expiration of the term 
of four years after any appraisement and offer for sale of any lands 
in this State belonging to any township for school purposes, and 
such lands remain unsold, it shall be lawful to re-appraise, sell, and 
dispose of said lands in the same manner that they would have 
been, had such lands not been previously offered for sale : Provided, 
however, That such appraised value shall not be below the mini- 
mum price now fixed by law. 

[1883, p. 75. Approved and in force March 3, 1883.] 

Sec. 4352<3:. Advertisement of funds, i. Whenever, in any county 
of the State of Indiana, the school fund, or part of the school fund, 
apportioned to such county to be loaned out, remains unloaned, it 
shall be the duty of the auditor of said county to advertise, in the 
months of January, A_pril, July and October, for three consecutive 
weeks, in a weekly newspaper published in said county, that such 
amount of the school fund remains unloaned, and that applicants 
for loans can secure the same by applying at his office and fulfill- 
ing the requirements of the law under which he is authorized to 
loan out the school fund. [El. Sup. § 1267.] 



543] SALE OF SCHOOL LANDS. [§§4352(^ — 4353 

[1SS3 p. 79. Approved and in force March 3, 1883.] 

Sec. 4352^. Re-appraisement of forfeited lands, i. All lands which 
have become forfeited and have reverted, or may hereafter be for- 
feited and revert to the various townships in the several counties 
of this State, for failure to pay the interest or principal of the 
amount due thereon to the school fund, and which have remained, 
or hereafter remain unsold for the period of three years, by reason 
of the amount due thereon being in excess of the values of said 
lands, may be re-appraised and sold for a sum not less than said 
re-appraised value thereof; such re-appraisement and sale to be 
made in the same manner and upon the same terms and conditions 
as is now prescribed by law for the appraisem.ent and sale of such 
lands. [El. Sup. § 1269,] 

§ 4352 provides for the re-appraisement and sale of any lands in this State 
belonging to any township for school purposes, which is presumed to include 
lands forfeited in the manner indicated in this section. If such is the case, this 
section supersedes § 4352 as to such forfeited lands, but not as to congressional 
township lands which have never been sold. §§ 4347 and 4348 relate to the for- 
feiture and re-sale of lands originally belonging to and sold by the congressional 
townships, §§ 4383 and 4393 to forfeiture and re-sale of lands mortgaged to 
secure loans from either of the school funds. When a sale has not been effected 
on the appraisement required by § 4393, this section authorizes a re-appraise- 
ment and sale at the end of three years. 

Sec. 4352^. Appropriation by commissioners. 2. Upon the sale 
of such lands as provided for in the preceding section of this act, 
the board of county commissioners of the several counties in which 
said lands are situated may make an appropriation, from the gen- 
eral county funds, a sum equal to the difference between the 
amount for which said lands shall have been forfeited and the 
amount for which such lands shall have last sold ; said sum appro- 
priated to be placed to the credit of the proper fund and loaned as 
other school funds are loaned. [El. Sup. § 1270.] 

The duty of the board to make such appropriation is imperative, since the 
county is liable for all deficits in the funds entrusted to it, § 4326, note 2. 

Sec. 4352<^. Repeal of conflicting* laws. 3. All laws and parts 
of laws in conflict with the provisions of this act are hereby 
repealed. [EL Sup. § 1271.] 

1. Note. For the effect of this act (the three foregoing sections) on other 
provisions of the law, see § 45411^, note i. 

2. Construed. See § 4393, note 4; and § 4394, note i. 

[1865 p. 3. Approved and in force March 6, 1865.] 

Sec. 4353. Certificate of purchase. 62. A certified statement of 
such sale shall be made and signed by the auditor, and, being first 
recorded by such auditor in the record of the board of county com- 
missioners, shall be delivered to the purchaser when he makes his 
first payment, and shall entitle him to a deed when the terms of 
such purchase shall have been fully complied with. 

A judgment is no lien on land held by a certificate of purchase under this 
section, even though the defendant has taken possession and paid the money 



§§4354—4357] education. [544 

before the rendition of the judgment; and a sheriff's sale, on execution against 
the obligee of land so held, conveys no estate to the purchaser, 21 Ind. 112. 

Sec. 4354. Eights of purchaser. 63. Every purchaser, until 
forfeiture, shall be entitled to all the rights of possession before 
existing in such trustee or township, and to all rights and reme- 
dies for rents becoming due or breaches of covenant occurring 
after his purchase under any lease existing at the time of his pur- 
chase, and for all waste committed thereafter. 

Estoffel. Where the inhabitants of a township had received a part of the 
purchase-monej of school lands, and interest for several years on the balance, 
and expended the money for the purposes contemplated by the grant, and the 
purchaser had taken possession and made valuable improvements ; it was held 
that they must be deemed to have acquiesced in the sale, and that they were 
estopped to deny its validity, 14 Ind. 409. 

Sec. 4355. Failure to make first payment — Penalty. 64. A pur- 
chaser at such sale failing to make the first payment as above 
required shall pay ten per centum on the sum bid, to be recovered 
by action before any court having jurisdiction, to be prosecuted by 
the county auditor in the name of the State for the use of the 
proper township ; and the auditor and treasurer shall be competent 
witnesses. 

Sec. 4356. Assignments. 65. No assignment of a certificate 
shall be vaHd unless acknowledged before some officer authorized 
to take acknowledgments of deeds, or before the county auditor, 
who shall, in all such cases, record the same. Assignments of cer- 
tificates heretofore made before any officer authorized to take 
acknovv'ledgments of deeds, when recorded, shall be as valid as if 
acknowledged before the county auditor. 

[1863, p. II. Approved February 27, 1863, and in force October 10, 1S63.] 

Sec. 4357. Defective assignments — Proceedings. 66. Whenever 
the certificate of the school commissioner or auditor of any county 
of this State, issued for land sold, has been assigned by any per- 
son without a proper acknowledgment before the county auditor 
or other proper officer, or assigned by delivery, and such assignor 
is deceased, any assignee of such certificate, claiming title to the 
land described therein, may file his complaint in the proper circuit 
court, making the county auditor and the heirs of such deceased 
assignor parties thereto. If it shall be proved to the satisfaction 
of the court, that the plaintiff or any party to the cause is the 
e(^uitable owner of the land, and the purchase-money has been 
fully paid to the school fund, the court shall direct the auditor to 
execute a proper conveyance to the plaintiff or other parties en- 
titled thereto, although the certificate has not been properly 
assigned or the assignment thereof properly acknowledged by the 
decedent. All other persons claiming any interest in the land 
may, on their application, be made parties and heard in the case. 
The auditor shall execute a conveyance, according to the directions 



545] SALE OF SCHOOL LANDS. [gg 4358 4364 

of the court ; and such conveyance shall vest in the grantee the 
title of said land as fully and to all intents and purposes as if the 
certificate had been legally assigned and the assignment properly 
acknowledged. 

• [1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4358. Loan of purchase-money. 66. When the residue of 
the purchase-money becomes due, the purchaser may retain the 
same as a loan for a term not exceeding three years, on payment, 
annually made in advance, of the interest thereon, at the rate then 
established by law for the loans of such funds ; but he shall receive 
no deed until full payment is made. 

Sec. 4359. Payments. 6]. Purchasers may, at any time before 
due, pay a part or the whole of such purchase-money. 

Sec. 4360. Lost certificate. 6%. When any such certificate shall 
be lost before a deed be made, on proof thereof by affidavit of the 
person interested, or other competent testimony, to be filed with 
the county auditor, and after three months' notice of intention to 
apply for a new certificate, given in some newspaper printed 
nearest to where the land lies, such auditor may issue the same.: 
to the person entitled thereto. 

See 50 Ind. 240, 244. 

Sec. 4361. Purchase-money, where paid. 69. The purchase-money 
and interest, and all costs and damages above provided for, shall 
be paid to the treasurer of the proper county, and his receipt there- 
for filed, by the person paying, with the county auditor, who shall 
issue his quietus therefor. 

Sec. 4362. Buty of auditor. 70. When such payment is in 
completion of any contract of sale, the amount of such receipt shall 
be indorsed by the county auditor on the certificate of purchase. 

Sec. 4363. Deed. 71. On full payment for such land, a deed 
shall be issued by the county auditor, and entered on the record- 
book of the board of county commissioners. 

[1S77, p. 139. Approved and in force February 8, 1877.] 

Sec. 4364. Sale — Legalization, i. In all cases where school 
lands have been sold and certificate has either been issued to the 
purchaser or entered of record in the proper office, or otherwise, 
so the purchaser entered into possession and paid part or the 
whole of the purchase-money, or could have entered into occu- 
pancy, such sale shall be deemed and held a sale under the law, 
as much as it would be had a deed been made and delivered and 
the fee had been passed to the purchaser; and such lands shall be 
deemed and held as having been sold, so as to make them liable 
to taxation, within the meaning of the law, as fully and com- 
pletely as they would have been had a deed been delivered. All 
35 . 



§§ 43^5 — 43^8] EDUCATION. [546 

appraisements of land so sold, and all assessments of the same for 
taxes, and all levies and collections of taxes thereon, heretofore 
made, are hereby legalized and declared to be lawful and valid, 
and shall in nowise be subject to question by reason of such sale 
not having been consummated by execution and delivery of deed. 
See § 6419, notes. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4365. Title, wlien complete. 72. Such deed shall be ex- 
cuted and acknowledged, at the cost of the grantee, by the county 
auditor, as in other cases ; and, thus executed and delivered, shall 
vest in the grantee, his heirs and assigns, forever, a complete title 
to the land. 

Sec. 4366. Sale had without vote. 73. The voters of any con- 
gressional township may, in the absence of a vote to sell land, and 
in lieu thereof, petition the trustee of the township for such sale. 
Such petition, if signed by a majority of all the voters of the town- 
ship, shall be filed with the county auditor, and the same proceed- 
ing shall be had as provided in sectic^ fifty-four [§ 4345], upon a 
vote of the inhabitants of the township for such sale. Such peti- 
tion and certificate shall be recorded in the record-book of the 
trustee of the township and of the county auditor of the investment 
of funds held for the benefit of common schools and congressional 
township. 

See § 4329, note. After a petition has been filed, signers thereof can not 
withdraw their names in order to defeat the sale. 

Sec. 4367. Compensation on failure of title. 150. When any 
officer authorized to sell school lands shal) have sold any lands 
without a title thereto, such officer, or his successor in office, may 
convey such other lands of equal value as may be agreed upon by 
such officer and the purchaser, his heirs or assigns ; or, failing to 
make such agreement, the purchase-money, with interest, shall be 
repaid to the purchaser, his heirs, executors, administrators or 
assigns ; but no such purchase-money shall be thus repaid until the 
proper prosecuting or district attorney shall have investigated the 
facts of the case and certified to the correctness of the,-claim. 

1. The sale of school lands in unauthorized subdivisions, made prior to 
March 3, 1855, was legalized by an act of 1855 (p. 144). 

2. The rate of interest in such case will probably be six per cent, § 4369. 

3. This section does not apply to title of lands mortgaged to school fund 
and sold by the auditor, § 4383, iiotc 4. 

[1855, p. 49. Approved March i, 1855, and in force August 17, 1855.] 

Sec. 4368. Lands of surplus revenue fund, how sold. Where the 
surplus revenue fund belonging to common schools, in any county 
in this State, or any part of such fund, has by any means become 
invested or changed into real estate, the board of commissioners 
of such county are hereby authorized to dispose of the same, by 
sale, in such manner as may seem best for the interests of the 



547] LOANING SCHOOL FUND. [§§ 4369 4373 

common school fund, and to re-invest the proceeds of such sale in 
the manner directed by law for the investment of other moneys 
belonging to the common school fund. 

This section is probably obsolete since the consolidation of the school fund, 

[1S89, p. 68. Approved and in ibrce March 2, 1889.] 

Sec. 4369. Loans of fund — Interest i. The principal of all 
moneys, whether belonging to the common school fund or to the 
congressional township school fund, received into the county 
treasury, shall be loaned at six per cent, per annum, payable an- 
nually in advance, and the interest paid out as prescribed by the 
school law of this State, and not otherwise ; and any judgment 
upon any note or mortgage for any part of said funds shall bear 
eight per cent, interest from the date thereof till the same is paid. 
[El. Sup. § 1261.] 

See § 5305, now repealed by this section as to school fund. 

Sec. 4369<^. Laws repealed. 2. All laws or parts of laws in 
conflict with provisions of this act are hereby repealed. [El. Sup. 

§ 1262.] 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4370. Auditor's duty. 75. Such loans shall be made by the 
county auditor, who shall inform himself of the value of the real 
estate offered in the mortgage and be satisfied of the validity of 
the title thereof; and all persons applying for a loan shall produce 
to said auditor title-papers, showing to his satisfaction, a good and 
sufficient title in fee-simple, without incumbrance [,and] not de- 
rived from sale for taxes. 

I- Prior mortgage. The existence of an incumbrance, to the knowledge of 
the auditor, does not invalidate the mortgage as against the borrower, 23 Ind. 
416. 

2, Pers07ial security . A loan on personal security only, without a mort- 
gage, though a violation of the auditor's duty, is nevertheless binding upon the 
borrower and the suretjs 51 Ind. 52. 

3. Improper loans. A county auditor can not loan school funds to him- 
self, 74 Ind. 181. See § 4334, note 2. But may on real estate situated out of his 
own county, § 4373. 

Sec. 4371. Appraisement. j6. The auditor shall require three 
disinterested freeholders of the neighborhood to appraise any land, 
offered in mortgage. 

Sec. 4372. Duty of appraisers, JJ. Such appraisers, being first 
officially sworn, shall examine and appraise such land, and sign 
and give to the applicant a certificate, setting forth the fair cash 
value of the land at the time, without taking into consideration 
perishable improvements. 

[1S85, P- 195- Approved April 11, 1S85, and in force July iS, 1SS5.] 

Sec. 4373. Loans outside of county. "jZ. In making such loans 
preference shall be given to the inhabitants of the county: Pro- 



§§ 4374. 4375] education. [548 

vided, That whenever any of such funds shall have remained in 
the treasury of any county to which the same may belong for a 
period of three months without being loaned to any inhabitant of 
said county, then the auditor of said county may loan the same to 
any freeholder of any other county in Indiana upon his complying 
with the law regulating such loans. When the land received as 
security for any such loan is situated in any county of the State 
other than the one in v/hich the loan is made, and there is default 
in the payment of interest or principal, the auditor of the county 
making the loan shall at once transmit to the auditor of the county 
where the land is situated a certified copy of the note and mort- 
gage given for the loan, with a statement of such default in pay- 
ment, and the auditor of such latter county shall, upon such cer- 
tified copy, at once proceed to enforce the collection of such loan 
either by suit or sale of the land, as is now provided by law ; and, 
after receiving such certified copy by said auditor, all steps taken, 
and all proceedings had, with reference to said loan or the land 
which was mortgao-ed shall be the same as if the loan had origi- 
nally been made out of the funds belonging to said county ; and 
all money collected or realized upon such loan shall at once, as 
soon as collected or realized, be paid over to the auditor of the 
county having made the loan. [El. Sup. § 1253.] 

Heretofore loans could not be made on property situated outside the couhty. 
See 7 Ind. 77. 

Sec. 4374. Limit of loan. 79. The amount loaned to any person 
shall not exceed two thousand dollars. [El. Sup. § 1254.] 

The limit previous to this act was one thousand dollars. 

[1881 S., p. 99. Approved and in force April 14, 1S81.] " 

Sec. 4375. Certificate as to liens, i. An applicant for a loan 
of a part of the common school fund or of the congressional town- 
ship school fund shall file with the auditor of the county the certifi- 
cate of the clerk and recorder of the county, that there is no incum- 
brance on the land offered as a security for the loan in either of 
said offices : Provided, That where the records, books, and papers 
of the clerk's office have been destroyed by fire, the clerk's certifi- 
cate shall only state the fact and date of such destruction, and that 
there is no incumbrance on said land appearing from, any of the 
records, books, and papers then on file in his office, and that there 
is no incumbrance on said land in his office of which he has any 
knowledge. The applicant shall also, in such case, execute to the 
State of Indiana, for the benefit of the common school fund, a 
bond, with one or more freehold sureties to the approval of the 
auditor, conditioned for the payment of so much of the loan as 
may be lost by reason of any incumbrance or lien upon the land 
which was evidenced by the records, books, or papers in the clerk's 
office which have been destroyed. 



549] LOANING SCHOOL FUND. [§§ 4376 — 4378 

1. Evidence. In a foreclosure proceeding the certificate takien under this 
section and the affidavit under the following section are admissible in evidence, 
although probablj immaterial, to show a compliance with the law in taking the 
mortgage, loi Ind. i, 

2. Irregularities of loan. A complaint to enjoin a sale of land by a county 
auditor to satisfy a school fund mortgage, which shows that the plaintiff, after 
the mortgage was executed, purchased the land under the foreclosure of a secret 
vendor's lien antedating the mortgage, and alleges that the plaintiff, at the time 
the mortgage was executed, held a judgment against the mortgagor, but makes 
no claim of title under that judgment, and alleges further that the auditor in 
taking the mortgage failed to require an oath of the mortgagor, and a certifi- 
cate of the clerk and recorder, that the land was unincumbered, and also failed 
to have the property appraised, as provided by law, is not sufficient to entitle 
the plaintiff to an injunction or to avoid the mortgage, 117 Ind. 328. 

3. Prior liefi. A school fund mortgage is not void because of another and 
prior lien on the land mortgaged, 23 Ind. 416. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4376. Oath of applicant. 8i. Such applicant shall make 
oath that there is no incumbrance or better claim, that he knows 
of, and that the abstract of the title presented by him is, as he 
believes, a true one. 

1. Affidavit. The law requires the affidavit as a safe-guard to the trust 
fund, not to the citizen, 117 Ind. p. 332. 

2. Married -woman. It is doubtful if a married woman, after making the 
statement here required, can defeat the mortgage she joins in on the ground 
that she gave the mortgage as surety for her husband, 123 Ind. 425. 

Sec. 4377. Time of loan. 82. No loan shall be made for a 
longer term than five years. 

[1885, p. 195, Approved April ii, 1885, and in force July 18, 1885.] 

Sec. 4378. Limit of loan. 83. The sum loaned shall not exceed 
one-half of the appraised value of the premises proposed to be 
mortgaged, clear of all perishable improvements: Provided, That 
where such premises are situated in a county other than that which 
such fund may belong, the sum loaned thereon shall not exceed 
one-fourth of the appraised value of such premises, exclusive of 
perishable improvements. Such value to be determined by the 
existing laws of the State of Indiana. It is hereby made the duty 
of the board, of commissioners of each county of this State, at their 
first regular session after the taking effect of this ^ct, to appoint in 
each commissioner's district of the county three reputable free- 
holders, any two of whom, without the concurrence of the third, 
may act as school fund appraisers, whose duty it shall be upon 
oath to make all the appraisements of lands in their respective dis- 
tricts, required in this act or in the act of which this is amendatory. 
Said appraisers, or any of them, may be removed and new ones 
appointed by said board at any regular or special session, and in 
case any of such appraisers is at any time disqualified, by reason 
of kinship or interest, from acting, the appraisement shall be made 
by the other appraisers, who in case of a disagreement shall select 



§§4379—4383] EDUCATION. [550 

for making each appraisement, and be paid in the same manner as 
such appraisers are now paid. [El. Sup. § 2155.] 
See § 4374. 

[1865, p, 3. Approved and in force March 6, 1865.] 

Sec. 437.9. Acknowledgments and oaths. 84. The auditor shall 
have the power to administer all oaths and take all acknowledg- 
ments required by this act. 

Sec. 43B0. Eecord of mortgages — Priority, 85. Mortgages taken 
for such loans shall be considered of record from the date thereof, 
and shall have priority of all mortgages or conveyances not pre- 
viously recorded, and all other liens not previously incurred, in the 
county where the land lies. 

1. Taxes and tax titles. A sale of land for taxes which accrued after the 
execution of a school fund mortgage, is subject to the mortgage lien, loi Ind. i ; 
see § 6446, note 3. The purchaser and grantee of real estate, under a tax deed, 
takes his title to such real estate under the provisions of § 6479, R. S., and sub- 
ject to all the claims which the State mav have thereon for taxes, or other liens 
or incumbrances, such as a mortgage executed thereon to the State, as a security 
for the payment of a loan to the school fund, prior to such tax sale and the 
execution of such tax deed. This is so, although the taxes for which the real 
estate was sold had been assessed and delinquent before the execution of such 
school fund mortgage, 95 Ind. 175. 

2. Registry. The registry of a deed or mortgage is notice only to those 
who claim througb or under the grantor or mortgagor. Parties holding or 
claiming through or under the mortgagor in a school fund mortgage are bound 
to take notice of the mortgage, although not recorded as required by the general 
registry law, loi Ind. i. 

Sec. 4381. Auditor's duty, S6. The auditor shall cause such 
mortgages to be recorded immediately, retaining the cost of 
recording out of the money borrowed. 

1. If the mortgage be recorded, not being acknowledged or proved as our 
general laws require to admit mortgages to record in the recorder's office, such 
record is no notice to subsequent bona fide purchasers. But the act of 1843, still 
in force (R. S. 1843, p. 245), requires that such mortgages shall be deemed re- 
corded from their date ; and this is such a notice as a bona fide purchaser for 
value is bound by it, 23 Ind. 416; 116 Ind, 383. 

2. Lien xvithout record. A school fund mortgage is a lien upon the land as 
to subsequent purchasers without being recorded, 98 Ind 335. 

3. Action to cancel. An action to cancel a mortgage can not be maintained 
against the county auditor; the State is the proper party, 123 Ind. 425. 

Sec. 4382. Fees. 108. The following fees only shall be charged 
in cases of mortgage for loans: To each appraiser, fifty cents; for 
recording mortgage, one dollar; for drawing mortgage, one dol- 
lar; for making borrower's affidavit, ten cents; for clerk's certifi- 
cate, fifty cents ; for recorder's certificate and examining title, each 
one dollar ; which shall be paid by the borrower. 

Sec. 4383. Interest unpaid— Auditor's^ duty. 87. On failure to 
pay any installment of interest v/hen the same becomes due, the 
principal sum shall forthwith become due and payable, and the 



55 l] LOANING SCHOOL FUND. [§ 4383<^ 

auditor may proceed to collect the same by suit on the note, or by 
sale of the mortgaged premises. He may also, by suit, recover 
the possession of the mortgaged premises before sale thereof; and 
he shall on the fourth Monday in March, annually, offer for sale 
all mortgaged lands on which payments of interest are due on the 
first day of January and unpaid on the day of sale. 

1. Statute mandatory. In selling lands, the auditor must strictly follow the 
requirements ot" the statutes upon the subject. Where sale is made to make a 
greater sum than is due, the sale is void ; and where the borrower has made a 
payment of interest, and failed to file the treasurer's receipt with the auditor, 
it will not excuse the auditor for selling to make a sum greater than is really 
due, 29 Ind. i; 58 id. 543. The law in force at the time of sale, providing the 
method, notice, and other elements of remedy, governs the sale, 25 Ind. 4; 26 
i<i- 450; 31 id' II- 

2. Merger of mortgage. After obtaining judgment and foreclosure by 
suit, the mortgage is merged ; the auditor can not, then, sell under it, and such 
sale is a nullity, 65 Ind. 262. 

3. No vjarranty. The State does not warrant the title of lands sold on 
account of the school funds. Officers should see that lands mortgaged to secure 
the school funds are properly described and unincumbered, but the purchaser 
at the mortgage sale takes whatever title he gets, and there is no law authoriz- 
ing the refunding of purchase-money by the officers. — Woollen., Atty. Gen. 

4. Title from the State. The title of a purchaser from the State, after the 
State has acquired title upon a forfeiture against a school fund borrower and 
mortgagee, takes precedence of any tax-deed or lien, whether State, city or 
county, for taxes that accrued subsequent to the school fund loan. — Baldzviti, 
Atty. Gen. See § 4380, note 1. 

5. Can not release ivithout payment. The auditor of a county has no 
authority to release a school mortgage unless the money is paid, and where a 
party is entitled by his contract to an unincumbered title, he is not compeJled to 
accept a conveyance of land thus encumbered, though the auditor has released 
the mortgage of record, 91 Ind. 413. 

6. Foreclosure. A suit by the county auditor to foreclose the mortgage 
may be maintained instead of resorting to statutory proceedings, 23 Ind. 416; 
loi Ind. I, 532 ; 65 Ind. 262. 

[1885, p. 195. Approved April 11, 1SS5, and in force July iS, 1S85.] 

Sec. 4383^. Collection on default. 4. It shall be the duty of 
the auditor of each county, in case default shall be or has been 
made in the payment of principal or interest of any school fund 
loan, to at once proceed to enforce the collection of such principal 
or interest, as the case may be ; and any auditor who shall fail or 
refuse to comply with the requirements of this section shall be 
deemed guilty of a misdemeanor, and upon conviction shall be 
fined in any sum not exceeding one thousand dollars. [El. Sup. 
§ 1256.] 

I. Auditor'' s duty. This section is properly supplemental to section 43S3 
(page 22), and the two should be read and interpreted together. In explanation 
of § 4383 the attorney general recently gave the following opinion ; The statute 
(4383) provides that "On failure to pay any installment of interest when the 
same becomes due, the principal sum shall forthwith become due and payable, 
and the auditor may proceed to collect the same by suit on the note, or by sale 
of the mortgaged premises. He may also by suit recover the possession of the 
mortgaged premises before sale thereof, and he shall on the fourth Monday in 
March, annually, offer for sale all mortgaged lands on which payments of in- 
terest are due on the first day of January and unpaid on the day of sale." It 



§§4384,4385] EDUCATION. [552 

was intended that the county auditor should possess a speedy and summary 
remedy to enforce collection. If he was required to sell on the fourth Monday 
in March only, then in many instances the officer could not enforce collection 
for a year after the delinquency and defalcation. In many counties the officer 
has made sales under the statute at other times than the fourth Monday in 
March. In Cole v. Miller, 60 Ind, 463, the sale of the mortgaged land was 
made February 20, 1875, ^^'^ the sale Avas sustained by the court. • Every part 
of a statute should be so construed as to give it effect. It is my opinion, that on 
failure to pay any installment of interest Avhen the same becomes due, the 
county auditor is authorized to sell the land at any time, after sufficient and 
proper notice. The duty imposed on him by statute, " to offer for sale on the 
fourth Monday in March, annually, all mortgaged lands on which payments of 
interest are due on the first day of January and unpaid on the day of sale," is 
intended to be mandatory. He may sell at any time after defalcation by the 
creditor, and lawful notice thereof, but must offer for sale on the fourth Monday 
in March, annually, all mortgaged lands on which paj-ments of interest are due 
on the first day of January and unpaid on the day of sale. — Hord^ Atty. Geji. 

2. Penalty. By this section the county auditor is required, under penalty, 
to do what, according to the attorney-general's opinion, he was authorized to 
do by section 4383, namely, to enforce collection of principal or interest of 
loans Avhenever default shall be made in the payment thereof, not waiting for 
the fourth Monday of March. But section 4383 is in force as to the manner of 
procedure. The usual legal notice must of course be given. — Holcombe^ Supt. 

Sec. 4384. Fund to be specified. 88. The mortgage may be, in 
substance, as follows ; and the auditor shall specify therein whether 
the same belongs to the common school fund or to the congres- 
sional township fund, and, if the latter, the particular township or 
townships whose funds are thus loaned. 

Sec. 4385. Form of mortgage. 89. I, A. B., of the county of 
— , in the State of Indiana, do mortgage to the State of Indi- 
ana, for the use of [here describe the fund out of which the loan 

was made], all [here describe the land], for the payment of 

dollars, with interest at the rate of eight per cent, per annum, pay- 
able annually in advance, according to the conditions of the note 
hereto annexed. 

1. Description. If it appears upon the face of the mortgage and the certificate 
of acknowledgment, that the mortgage was executed in this State, between resi- 
dents thereof, the presumption, in the absence of anything in the instruments 
to the contrary, is, that the description was intended for land: in this State, loi 
Ind. I ; 115 Ind. 529; ii6Ind. 383. A description as "The northeast part " of a 
specified tract, " containing, ninety acres," is insufficient and an auditor's sale 
thereon is void; but the mortgage may be corrected by a suit brought for that 
purpose and a decree of sale entered thereon ; or the auditor may thereafter 
make a statutory sale thereof, 85 Ind. 512. 

2. Ownership. A mortgagor is presumed to be the owner of the land mort- 
gaged, until something to the contrary appears. The possession by the mort- 
gagor, at the time of executing the mortgage, is prima facie sufficient to show 
that he Avas the owner. His title may be proved by parol, if such evidence is 
not objected to, loi Ind. i. 

3 Wife's signature. In the form prescribed, there is no mention of relin- 
quishment of a wife's inchoate interest. The wife, however, has an inchoate 
interest in the land held by the husband, and she should join him in signing 
the mortgage prescribed for securing loani, from the school fund. — Larrabee, 
Supt. See 85 Ind. 512; 115 Ind. 529. 

4. Assignment to subsequent mortgagee. Whenever a school fund mortgage 
becomes collectible on account of failure to pay interest or any other failure on 



553] FORECLOSURE OF MORTGAGES. [§§ 4386 439O 

the part of the mortgagor, by -which it becomes necessary to foreclose in order 
to recover the money, then such mortgage may be assigned to the holder of a 
subsequent mortgage vipon payment of the amount due. — Woollen, Atty. Ge?i. 
5. Wife. A wife may borrow money and mortgage her own land to dis- 
charge yalid liens thereon, or for a purpose that enures to its benefit or pro- 
tection, 115 Ind. 529. 

Sec. 4386. Form of note. 90. The note accompanying the 
same may be in substance as follows, to wit: I, A. B., promise to 
pay to the State of Indiana, for the use of [here recite the par- 
ticular fund], on or before , the sum of dollars, with 

interest thereon at the rate of eight per cent, per annum in ad- 
vance, commencing on the day of , 18 — ; and do 

agree that, in case of failure to pay any installment of interest 
w^hen the same shall become due, the principal sum shall become 
due and payable, together with all arrears of interest; and on 
failure to pay such principal or interest when due, two per cent, 
damages shall be collected, with costs, and the premises mort- 
gaged may be sold by the county auditor for the payment of such 
principal sum, interest, damages, and costs. 

The fact that the fund is not described in the note, nor that it is not signed, 
will not render it void; but taken, in connection with the mortgage it is a valid 
obligation, 82 Ind. 558. 

Sec. 4387. Warrant to borrower. 91. On making loan of any 
fund, the auditor shall draw his warrant in favor of the borrower 
upon the county treasurer, who shall charge it to the proper fund. 

Sec. 4388. Payments — Uiiietns. 92. All loans refunded and all 
interest shall be paid to the county treasurer, and his receipt shall 
be filed with the county auditor, who shall give the payer a quie- 
tus therefor, and make proper entries. 

1 . The auditor is bound to take notice of a payment to the treasurer, whether 
or not receipt has been filed with him, 29 Ind. i. 

2. Paymejit. Payment should be made to the county treasurer and not to 
the county auditor, 60 Ind. 463. 

Sec. 4389. Indorsements and satisfaction. 93. Whenever the 
amount due on any mortgage shall be paid, and the treasurer's 
receipt therefor tiled, the auditor shall indorse on the note and 
mortgage that' the same has been fully satisfied, and surrender the 
same to the person entitled thereto; and, on production of the 
same thus indorsed, the recorder shall enter satisfaction upon the 
record. 

County recorder's entry. The county yecorder can enter satisfaction of a 
school fund mortgage before foreclosure, only upon an indorsement by the 
county auditor that the same has been fully paid, loi Ind. i. 

Sec. 4390. Suit for deficiency. 94. In all cases when the mort- 
gaged premises shaU fail to sell for a sum sufficient to satisfy the 
principal and interest of the loan made, and the damages accrued 
by reason of such failure, and costs, the county auditor shall bring 



§§ 439^' 4392] EDUCATION. [554 

suit on the notes executed by the mortgagor ; and whenever judg- 
ment shall be rendered thereon, no appraisement of property shall 
be allowed on execution issued on such judgment. 

1 . The relator. The county auditor is the proper relator in a suit to re- 
cover school funds loaned, 51 Ind. 52. 

2. Damages. See § 4347, ''lote 2. 

3. Appraisement. The land should be ordered sold v/ithout appraisement. 

4. Suit for deficiency. No suit for a deficiency can be maintained until 
there has been a sale under § 4393, and a failure to realize enough to satisfy the 
amount due, 109 Ind. 3S8. The fact that the county has reimbursed the State 
on account of the deficiency does not defeat the suit. 

Sec. 4391. Hotiee of sales. 95. Before sale of mortgaged prem- 
ises, the auditor shall advertise the same in some newspaper 
printed in the county where the land lies, if any there be (other- 
wise, in a paper in the State nearest thereto), for three weeks suc- 
cessively, and, also, by notice set up at the court-house door and 
at three public places in the township where the land lies. 

1. Length of notice. The legislature may change the requisite length of 
notice even after the mortgage has been given, 26 Ind. 450. 

2. No compensation. The auditor is not entitled to compensation for 
posting notices of sale, 63 Ind. 492. 

3. Diligence. If any one seeks to avoid a sale for w^ant of notice, he must 
proceed with due diligence therein, 77 Ind. 486. 

Sec, 4392. Manner of sale — Surplus. 96. At such sale (which 
shall be held at the court-house door), the auditor shall sell so 
much of the mortgaged premises to the highest bidder, for cash, 
as will pay the amount due for principal, interest, damages, and 
costs. When less than the whole tract mortgaged shall be sold, 
the quantity sold shall be taken in a square form, as nearly as 
possible, off the northwesterly corner of said tract ; and when less 
than the whole of any in-lot or out-lot of any town or city shall be 
sold, the part sold shall be laid out and taken off, so that it shall 
extend from the main or principal street or alley on which the 
said lot fronts, to the rear thereof, to divide the same by a line as 
nearly parallel with the boundaries of said lot as practicable ; and 
if less than the whole is sold, the auditor, in his notice of sale, 
shall indicate off of which side or end of said lot the part to be 
sold shall be taken ; and if more than one tract of land is included 
in the mortgaged premises, the auditor shall elect which tract or 
tracts shall be sold, saving to the mortgagor, if practicable, the 
tract on which his house is located. If a tract of land so mort- 
gaged, and liable to be sold to satisfy the mortgage, can not be 
divided without materially diminishing the value of such tract ; or 
if any in-lot or out-lot be indivisible, by reason of extensive build- 
ings or other improvements thereon, the auditor may sell the 
whole thereof, and, after paying the amount due for principal, in- 
terest, damages, and costs out of the purchase-money, shall pay 



555] FORECLOSURE OF MORTGAGES. [§ 4392 

the balance, if any, to the mortgagor; and if the auditor sell any 
part of a tract of land, out-lot, or in-lot for more than the amount 
of principal, interest, damages, and costs, the excess, if any, shall 
be paid to the mortgagor. 

1. Division iinmaferial. The auditor can sell in no other way than that 
provided by law, 25 Ind. 4. But in a suit to set aside a sale made by the audi- 
tor, where "the mortgage debt, penalty and costs aggregated one hundred and 
fifty-two dollars and twenty cents, though the land was worth four thousand 
dollars, and could have been divided without materially diminishing its value, 
it was held to be immaterial that he did not, at the sale, offer any part in the 
form of a square or otherwise off of the northwest corner thereof, 58 Ind. 543. 

2. The excess. If the mortgagor has sold the land to another person, and 
the purchaser has assumed the mortgage, such purchaser would be subrogated 
to the mortgagor and entitled to receive the excess. — Bald-win^ Atty. Gen. 

3. Tax sale. The lien of the State upon land mortgaged to the school 
fund is not affected by a sale of the land for taxes, and the State need not 
redeem to save its rights. The purchaser at the tax sale takes title subject to 
the school fund mortgage. — JVoollen, Atty- Gen. See § 4380, ?iote i,and \ 6446, 
note 3. 

4. Claimant must shoiv regtdarity. If in making sale of lands for non- 
payment of interest upon a loan of school funds the auditor fails to obey strict- 
ly the requirements of the statute, the sale is void, and the party claiming title 
through the sale has the burden of showing such strict compliance, 93 Ind. 401; 
118 Ind. 184. 

5. Pozver of auditor. The auditor has no power to sell in any other mode 
than that precribed by the statute, 118 Ind. 184. 

6. Sale of less than zvhole tract In selling less than the whole tract mort- 
gaged, the auditor must take the amount sold out of the northwest corner of 
the tract; and if he do not, the sale will be invalid, 118 Ind, 184. 

7. Auditor'' s offer. It is the duty of the auditor to offer the mortgaged 
premises in the manner provided by the statute; and, if, after offering it for 
sale in that manner, no one bids the amount due, he must bid the property in 
for the use of the fund secured by the mortgage, 118 Ind. 184. 

8. Sale for more than due. A sale for the payment of a greater sum than 
is actually due is void, 29 Ind. i ; 21 Ind. 421, And this is true even though the 
mortgagor has failed to file the treasurer's receipt with the county auditor, as 
required by statute, 29 Ind. p. 9. Thus a sale for $21.00 more than was due was 
held void, 29 Ind. i; and so for $30.00,21 Ind, 421. The payment of interest on 
the mortgage is a valid credit, 29 Ind. i. 

9. Subrogatio7i. The purchaser of land sold under a school fund mortgage 
may be subrogated to the rights of the State in the mortgage, if the sale has been 
set aside as invalid , and the fact that there was a mistaken description in the 
mortgage, if the mistake be such as can be corrected at the suit of the State, does 
not affect the right of subrogation on the part of the purchaser at the sale under 
the mortgage, upon the sale being set aside as invalid, 82 Ind, 471. 

10. Description made good by reference. A defective description in a 
mortgage is made good by a reference to another mortgage or a deed which 
contains a true description, 82 Ind. 471. 

11. Sale of several tracts. If there are several tracts mortgaged, they can 
not be offered at once and together until after an effort is made to sell them 
separately; and so much only can be sold as will pay the amount due for prin- 
cipal, interest, damages and costs, 93 Ind p. 410. But if the land is described in 
the mortgage as a single tract, the auditor is not required to ofter it in specific 
parcels, 106 Ind. 589. 

12. Quieting title — Tender. One whose land has been sold to satisfy a 
school fund mortgage executed by him, can not maintain an action to quiet 
title against the purchaser, although the sale was void, without first paying or 
tendering to the latter the amount paid by him, io5 Ind. 5S9. 

13. Mcrgsr. If a school fund mortgage has been foreclosed, no sale can 



§§4393—4395] education. [556 

be made under the statute; for the effect of the judgment of foreclosure is to 
merge the mortgage in it, and extinguish the mortgage, 65 Ind. 262. 

[1889, p. 314. Approved and in force March 9, 1889.] 

Sec. 4393. Auditor's bid. 97. In case of no bid for the amount 
due, the auditor shall bid in the same on account of the fund, and, 
as soon thereafter as may be, shall sell the same, having first caused 
it to be appraised by three disinterested freeholders of the neigh- 
borhood, upon the following terms, viz.: One-third cash in hand, 
and the balance in four equal instaUments due in one, two, three 
and four years respectively from the day of sale, bearing interest 
at six per cent, per annum, payable annually in advance; but no 
such sale shall be for a less sum than the appraised value thereof. 
[EL Sup. § 1259.] 

1. More than one appraisenipnt. If the appraisement is found to be too 
high, the auditor may have a re-appraisement made, and sell the property under 
the modified valuation. Any other construction might work irreparable dam- 
age to the fund, as property might never sell for the amount of the first appraise- 
ment, and might thus become a worthless investment. — Woollen^ Atty. Gen. 

2. Credit. The sale can be made only on credit, as specified in this section; 
it can not be made for cash, 65 Ind. 262. 

3. Suit for deficiency . A suit for a deficiency can not be maintained until 
there is a sale of the land, 109 Ind. 3S8. 

4. County entitled to the property bid iii. Where the county auditor bids 
in the land it belongs to the county ; and the school fund is only entitled to the 
principal of said loan and the interest thereon until after the county treasurer 
is reimbursed because of the interest it has paid to the said fund on account of 
said loan, 122 Ind. 333. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4394. Sale of lands bid in. 98. Lands heretofore bought in 
on account of the fund, which have been appraised, shall be sold 
in like manner; and if, upon sale of any such land, a sum is real- 
ized which is more than sufficient to pay the principal, interest, 
damages and costs, the overplus shall be paid to the original 
mortgagor, his heirs or assigns, when coUected. 

Compare <§ 4347. The provisions in this section in reference to the dem.ands 
for which the mortgaged land shall be sold to satisfy, applies to the preceding 
section, 122 Ind. 333. 

Sec. 4395. Deed by auditor. 99. Upon full payment being made 
for such lands, the deed therefor shall be executed by the county 
auditor, and shall be entered in the record of the board of county 
commissioners before delivery. 

1. Record of deed. A recording of the deed in the commissioner's record 
is a condition precedent to its deliverv, and a necessary step in the sale, cS Ind. 
543- 

2. The deed as evidence. It is the deed alone that vests the title in the pur- 
chaser, and if the deed does not state that the proper steps have been taken to 
perfect a sale it is no evidence that those steps have been taken, 7 Blkf. 12. 

3. Tender of deed. A suit for the purchase-money can not be made with- 
out tender of a deed for the property, recorded as required above, not absolute 
but conditional upon payment therefor, 74 Ind. 588. 



557] SALE OF LANDS BID IN. [§§4396—4399 

Sec. 4396. Statement of sales. lOO. At the public sale at the 
court-house door provided for in this act, the county treasurer shall 
also attend, and make a statement of such sales, which shall be 
signed by the auditor and treasurer, and, after being recorded in 
the auditor's office, shah be filed in the treasurer's office; and such 
record, or a copy thereof, authenticated by the auditor's or treas- 
urer's certificate, shall be received as evidence of the matters con- 
tained therein. 

This statement must be signed by both auditor and treasurer, or the sale will 
be void, 58 Ind. 543 ; 93 Ind. p. 40S/ 

Sec. 4397. Title in State without deed. loi. When any land is 
laid [bid] off by the auditor at such sale, no deed need be made 
therefor to the State ; but the statement of such sale, and the 
record thereof, shall vest the title in the State, for the use of the 
proper fund. 

Sec. 4393. Annual report. 102. County auditors and county 
treasurers shall annually report, in writing, to the boards of county 
commissioners of the respective counties, at the June sessions of 
said boards, relative to the school-fund held in trust by said coun- 
ties, distinguishing, in said reports, between the congressional 
township and common-school funds ; indicating the amount thereof; 
the additions to them within the current year then ending ; the 
sources from whence such additions are derived ; the condition of 
them as to their safety, giving the amount thereof safely invested, 
unsafely invested and uninvested, and loss, at the date of said 
reports ; giving also the amount of interest collected upon said 
funds within the year then ending, and the amount then due and 
unpaid. 

See § 4404. 

Sec. 4399. Duty of boards. 104. The boards of county com- 
missioners shall, annually, at their June sessions, in the presence 
of the auditors and treasurers, examine said reports, the accounts, 
and proceedings of said officers in relation to said funds, and the 
revenue derived from them. They shall -compare with said re- 
ports, the cash, the notes, mortgages, records, and books of said 
officers, with a view to ascertain the amount of said funds and 
their safety ; and do whatever may be necessary to secure their 
preservation and the prompt payment of the annual interest thereon 
as the same becomes due; and make up to said funds losses which 
have accrued or may accrue. 

Lost funds. If any of the school fund, principal or interest, is lost, the 
superintendent of public instruction may direct the proper prosecuting attorney 
to institute suit against the county for its recovery, § 4413- If suit is not 
brought within one year after cause of action has accrued, the attorney-general 
may bring it, Acts 1889, p. 124, § 9 ; El. Sup. § 1805. The prosecuting anorney 
is not authorized to bring suit at his own instance, R. S. iSSi, ^ 5S64, See also 
§ 4326, 7iote 2. 



§§ 4400 4402] EDUCATION. [558 

Sec. 4400. Board's report. 105. Each board of county com- 
missioners, at said session, shall make out a report, in writing, of 
the result of such examination, showing — 

First. The amounts of said funds at the close of last year. 

Secojtd. The amount added from sale of land within the year. 

Third. The number of acres of unsold congressional township 
school lands, and the approximate value thereof. 

Fourth. The amount added from fines and forfeitures. 

Fifth. The amount added by the commissioners of the sinking 
fund. 

Sixth. The amount added from all other sources. 

Seventh. The total amount of the funds. 

Eighth. The amount refunded within the year. 

Ninth. The amount re-loaned within the year. 

Tenth. The amount safely invested. 

Eleventh. The amount unsafely invested. 

Twelfth. The amount uninvested. 

Thirteenth. The amount of fund lost since 1842. 

Fow^eejtth. The amount of interest collected within the year, 

Fiftee?ith. The amount of interest delinquent. 

And in such report, said board shall distinguish between the 
congressional township fund and the common school fund ; and in 
its account of the interest or revenue derived from said funds, it 
shall observe the same distinction. 

U?isafe investments. Commissioners are not justified in reporting money 
as safely invested, on the ground that the county is liable tor the funds entrusted 
to it, and therefore the State can suffer no loss. If an}^ money has been loaned 
on personal security it should be reported as unsafely invested, such loans being 
contrary to law, ^ 4370, note 2. 

Ssa 4401. Disposition of report. io6. Such report shall be 
entered on the records of said board ; and copies thereof, signed 
by the members of the board, the auditor, and treasurer, shall be 
transmitted to the auditor of state and the superintendent of pub- 
lic instruction. 

Sec. 4402. Apportionment of loans. 152. Where the whole 
of the school funds of a county have been loaned, the auditor 
shall apportion to each congressional township a sufficient number 
of mortgages to cover the principal,, of its congressional township 
fund ; and where a part of the school funds only are loaned, the 
auditor shall so apply a proportional amount; and the cash on 
hand, when loaned, shall be for the benefit of the congressional 
townships, respectively, to the amount of the entire principal of 
its congressional township fund ; and in all loans made after the 
taking effect of this act, the note and mortgage shall specify the 
particular fund borrowed. 

This section prescribes the manner of carrying out the provisions of § 4327, 
and should have been placed after it in the Revised Statutes. If in any instance 
its provisions have not been complied with, it is still in force and must be 
obeyed. 



559] APPORTIONMENT OF LOANS. [§§4403 44O5 

[1S79, p. 102, Approved and in force March 29, 1879.] 

Sec. 4403. Miscellaneous scliool fund account, i. It shall be 
the duty of the auditor in each county to open an account with 
the congressional township school fund, to be styled the ' ' Miscel- 
laneous School Fund Account." He shall transfer to said account, 
from each township account, all sums on hand at any time when a 
loan is solicited (provided the aggregate sums will equal the 
amount sought to be borrowed), and may lend such combined 
sums in one loan; which loan shall be numbered in consecutive 
order, and the securities shall each and all be indorsed with the 
number as ''Miscellaneous Loan No. — ," as the number may be; 
and he shall enter in the miscellaneous account, on the debit side, 
separately, the sums taken from the account of the several town- 
ships, so as to show the corresponding number of the loan, and 
credit the several township accounts with the same sum and the 
like number of loan. Thence on, as interest accrues and is paid 
in on such loan, he shall debit the several township accounts v/ith 
the pro rata portion of such interest accruing to each ; and when 
such loan is paid, he shall distribute back to the township accounts 
the several sums originally transferred from each, and debit the 
miscellaneous account accordingly, and balance and close said 
account as to said loan. In all the entries throughout, he shall 
keep each entry identified by the proper number belonging to that 
loan, and so of each combined miscellaneous loan, as contemplated 
in this act. 

Sec. 4404. Bistribution and report. 2. In all cases where dis- 
tribution is made of the school funds under the law now in force, 
it shall include all money on hand, or which, according to law, 
should be on hand, not exceeding the interest on loans for one 
year, which shall be distributed in full, and no portion shall be 
omitted or retained ; and the report made by the auditor shall 
show fully the amount actually on hand, as required and contem- 
plated by law, and show the distribution of the same in full. 

Sec. 4405. Penalty against auditor. 3, If any auditor fail or 
refuse to so distribute and report such fund in full, as required by 
this act, he shall be liable to an action on his official bond. The 
superintendent of public instruction shall direct that action be 
brought upon the official bond of such defaulting auditor, and the 
prosecuting attorney of the proper county shall bring such action. 
On finding against such auditor, judgment shall be entered for the 
sum so omitted by him to be distributed, with damages of twenty 
per centum thereon, which shall be for the use and benefit of tl:e 
fund so omitted to be distributed. 



§§ 4406 4408] EDUCATION. [S^o 

ARTICLE 2— ADMINISTRATION. 

SEC. SEC. 

4406. Election and term of superintendent of 4437. School township. 

public instruction. 4438. Towns and cities. 

4407. Commencement of term — Oath. 443S<3. Power to incur debt. 
440S. Duties— Office— Clerks, and their pay. 4438^. Petition to incur debt. 

4409. Report to governor. 4438^- Notice of daj- s for business. 

4410. Report to general assembly. 4439- School trustees m cities and towns. 

4411. Duties. 4440- Trustees' bonds— Vacancy. 

4412. Traveling expenses. 4440a. County commissioners fill vacancy, 

4413. Supervision of school funds. 4441. Duty of school trustee. 

4414. May require reports. 4442. Record— Duty as to revenue. 

4415. Blanks and forms. 4443- Annual statement. 

4416. Forms of book-keeping. 4444- General duties. 

4417. Shall publish school laws. 4445. Superintendent in cities and towns. 

4418. Journals, etc., to libraries; 444S- Joint graded-ochools. 

4419. Salary—Pay of two clerks. 4447. Surplus— Special school revenue in cit- 

4420. Indiana state board of education. les and towns. 
4431. Duties and powers. 4448. Things legalized. 
442i<2. Traffic m question. 4449. Teachers' reports. 

4422. State teachers' certifieates. 4450. Trustees' report to county superinten- 

4423. Pay and mileage of board. dent. 

4424. County superintendent. 4451. Failure to report. 

4425. Shall examine teachers. 4452. Neslecting diities. 

4426. Maj- revoke licenses. 4453- Failing to serve. 

4427. Examinations — License. 4454- Trustee's accounts. 

4428. Record-book— Report to state superin- 4455- Examination of trustee and his books. 

tendent. 4456. Collection of accounts — Removal. 

4429. General duties. 4457- School commissioners, 

4430. When must enumerate. 4458. School districts. 

4431. Annual reports. 4459- Organization — Term — Vacancies. 

4432. Apportionment— Report. 4460. Duties and powers. 

4433. Compensation. 4461. Tax — Collection and payment. 

4434. Duty as to apportionment. 4462. Sessions — Record — No pay. 

4435. Duty as to school funds. 4463. General school law m force. 

4436. County board of education. 4464. Temporary loans. 

[1865, p. 3. Approved and m force March 6, 1S65.] 

Sec. 4406. Superintendent of public instruction. 119. There 
shall be elected by the qualified voters of the State, at a general 
election, a State superintendent of public instruction, who shall 
hold his office for two years. 

1, Term. The State snperintendencj being a constitutional office, the 
length of the term can not be changed bj legislation, § 1S9. 

2. The office. The time will come when j^our staperintendent iriaj be 
deemed respectable in the eyes of your general assembly, and when they will 
place him on an equal footing in every respect with your other state officers. — 
Fletcher, Stipt. 

The tragic and untimely death of the talented Fletcher, cut off in the midst 
of his usefulness, a public servant worthy to be compared with any of the distin- 
guished superintendents whose labors, aided by the great development of com- 
mon school interests, have brought about the verification of his prediction in 
the increased dignity, power, and influence of the office he held for too short a 
time. 

Sec. 4407. Commencement of term — Oath. 120. His official term 
shall commence on the fifteenth day of March succeedinq- his elec- 
tion. He shall take and subscribe the oath prescribed bylaw; 
which proceeding shall in all things conform to the law relative to 
the oaths of public officers. 

I. Oath of office. Every officer under the constitution must take such an 
oath before entering upon his duties, § 226. 

Sec. 4408. Duties — Office — Clerks. 121. The superintendent shall 
be charged with the administration of the system of public in- 
struction and a general superintendence of the business relating to 



561] SUPERINTENDENT OF PUBLIC INSTRUCTION. [§§ 44O9, 44IO 

the common schools of the State, and of the school funds and school 
revenues set apart and appropriated for their support. A suitable 
office shall be furnished for him, at the seat of government, in 
which the books, papers, and effects relating to the business of 
said office shall be kept; and there he shall give reasonable at- 
tendance to the business and duties of the office. He shall 
render an opinion, in writing, to any school officer asking the same, 
touching the administration or construction of the school law. He 
is hereby authorized to employ two clerks for said office, to be 
paid as the clerks of the office of the auditor of state are paid ; 
and the sum of eighteen hundred dollars is hereby annually ap- 
propriated for that purpose. 

1. Legislature's duty. It is the duty of the general assembly to prescribe 
the general duties of the state superintendent, and to provide suitable compen- 
sation for him, § 189, 

2. Ofinio7is. He is not bound to give opinions except to school officers — 
that is, county auditors, county treasurers and superintendents, township trus- 
tees, school directors, and school trustees of towns and cities. But the cour- 
tesy of superintendents has established the custom of answering questions 
toviching the construction and administration of the school laws, for all who 
need such information. 

3. His opiniojis not a defense. For it has been held that depositing funds 
in a solvent bank, by advice of state and county superintendents and county 
board, if loss result, is no defense to the trustee depositing, 61 Ind. 212. 

Sec. 4409. E,eport to governor. 122. In the month of January 
in each year in which there is no regular session of the general 
assembly, he shall make a brief report, in writing, to the govern- 
or, indicating, in general terms, the enumeration of the children 
of the State for common school purposes, the additions to the 
permanent school fund within the year, the amount of school 
revenue collected within the year, and the amounts apportioned 
and distributed to the schools. 

Sec. 4410. Report to general assembly. 123. At each regular 
session of the general assembly, on or before the fifteenth day 
of January, said superintendent shall present a biennial report of 
his administration of the system of public instruction, in which he 
shall furnish a brief exhibit — 

First. Of his labors, the results of his experience and observa- 
tion as to the operation of said system, and suggest the remedy 
for observed imperfections. 

Second. Of the amount of the permanent school funds, and 
their general condition as to safety of manner of investment ; the 
amount of revenue annually derived therefrom, and from other 
sources ; estimates for the following two years ; and the estimated 
value of all other property set apart or appropriated for school 
purposes. 

Third. Of such plans as he may have matured for the better 
organization of the schools, and for the increase, safe investment, 
and better preservation and management of the permanent school 
36 



§§4411 4413] EDUCATION. » [562 

funds, and for the increase and more economical expenditure of 
the revenue for tuition. 

Fourth. He shall present a comparison of the results of the 
year then closing with those of the year next preceding, and, if 
deemed expedient, of years preceding that, so as to indicate the 
progress made in the business of public instruction. 

Fifth. He shall furnish such other information relative to the 
system of public instruction — the schools, their permanent funds, 
annual revenues, etc. — as he may think to be of interest to the 
general assembly. 

He shall append to said report statistical tables, compiled from 
the materials transmitted to his office by the proper officers, with 
proper summaries, averages and totals appended thereto. He shall 
append a statement of the semi-annual collections of school reve- 
nue, and his apportionment thereof; and, when he deems it of 
sufficient interest to do so, he shall append extracts from the cor- 
respondence of school officers, tending to show either the salutary 
or defective operation of the system or of any of its parts ; and 
shall cause ten thousand copies to be printed and distributed to 
the several counties of the State. 

Sec. 4411. Duties. 124. He shall visit each county in the State 
at least once during his term of office, and examine the auditor's 
books and records relative to the school funds and revenues, with 
a view to ascertain the amount and the safety and preservation of 
said funds and revenues; and, for that purpose, he shall have ac- 
cess to, and full power to require for inspection the use of the 
books and papers of the auditor's office. Whenever he may dis- 
cover that any of the school funds are unsafely invested and unpro- 
ductive of school revenue, or that any of the school revenues have 
been diverted from their proper objects, he shall report the same 
to the general assembly. He shall meet with such school officers 
as may attend his appointment, counseling with the teachers, and 
lecturing upon topics calculated to subserve the interests of pop- 
ular education. 

I. Visits. The superintendent should hold himself in readiness to attend 
teachers' institutes whenever called upon. But it must be remembered that 
there are ninetj^-two counties in the vState, and that with so many labors to per- 
form in the office it will be impossible to spend much time in each county. 
Every teacher of our public schools is required to meet him at the time of such 
visitations, and the time lost in such cases shall not have to be made up by the 
teacher. — Fletcher., Supt. 

Sec. 4412. Traveling expenses. 125. He shall receive, for trav- 
eling and other expenses while traveling on the business of the 
department, a sum not exceeding six hundred dollars per annum ; 
and an appropriation of that amount is hereby made for that pur- 
pose, annually. 

Sec. 4413. Supervision of school funds, 126. He shall exercise 
such supervision over the school funds and revenues as may be 



563] DUTIES. [§§ 4414— 4419 

necessary to ascertain their safety and secure their preservation 
and application to the proper object ; and cause to be instituted, 
in the name of the State of Indiana, for the use of the proper fund 
or revenue, all suits necessary for the recovery of any portion of 
said funds or revenues. It is hereby made the duty of the proper 
circuit prosecuting attorney to prosecute all such suits at the in- 
stance of the superintendent, and without charge against said funds 
or revenue. 

1. See § 4400, note i. 

2. May employ attar 7iey. This section and R. S. 1881, § 561 1, authorize the 
state superintendent and auditor of state to employ an attorney to collect a 
claim due the school fund, and their contract in this behalf is the contract 
of the State, 76 Ind. 32S. 

Sec. 4414. May require reports. 127. He may require of the 
county auditors, county superintendents, county treasurers, trustees, 
clerks, and treasurers, copies of all reports required to be made by 
them, and all such other information in relation to the duties of 
their respective offices, so far as they relate to the condition of the 
school funds, revenues, and property of the common schools and 
the condition and management of such schools, as he may deem 
important. 

Sec. 4415. Blanks and forms. 128. He may prepare, and 
transmit to the proper officers, suitable forms and regulations for 
making all reports, and the necessary blanks therefor, and all nec- 
essary instructions for the better organization and government of 
common schools, and conducting all necessary proceedings under 
this act. 

Sec. 4416. Forms . of book-keeping. 102. Forms and modes of 
book-keeping shall, from time to time, be prescribed for county 
auditors and county treasurers by the state superintendent of pub- 
lic instruction. 

Sec. 4417. Shall publish schoollaws. 129. He shall cause as many 
copies of the acts of the general assembly in relation to the com- 
mon schools or the school funds, with necessary forms, instruc- 
tions, and regulations, to be from time to time printed, and dis- 
tributed among the school townships, as he shall deem the public 
good requires. 

Sec. 4418. Journals, etc., to libraries. 130. He shall supply each 
common school library with the legislative and documentary jour- 
nals, and the acts of each session of the general assembly, and his 
own annual reports. At the expiration of his term of office, he 
shall deliver to his successor possession of the office, and all books, 
records, documents, papers, and other articles pertaining or belong- 
ing to his office. 

[1879 S., p. 131, Approved March 31, 1S79, ^"^^ ^^ force May 31, 1S79.] 

Sec. 4419. Salary — Pay of two clerks. 11. The salary of the 
superintendent of public instruction shall be twenty-five hundred 



§§4420, 4421] EDUCATION. [564 

dollars per year. The salaries of the two clerks of the superin- 
tendent of public instruction shall be nine hundred dollars each per 
year. 

[1875, p. 130. Approved February 25, 1875, and in force August 24, 1875.] 

Sec. 4420. State board of education. 153. The governor of the 
State, the state superintendent of public instruction, the president 
of the State University, the president of Purdue University, the 
president of the State Normal School, and superintendents of com- 
mon schools of the three largest cities in the State, shall constitute 
a board, to be denominated the Indiana State Board of Education. 
The size of the cities shall, for this purpose, be determined by the 
enumeration of children for school purposes, annually reported by 
county superintendents to the superintendent of public instruction. 
The superintendent of public instruction shall, ex officio^ be presi- 
dent of the board ; and in his absence the members present shall 
elect a president pro tempore. The board shall elect one of its 
members secretary and treasurer, who shall have the custody of its 
records, papers, and effects, and shall keep nninutes of its proceed- 
ings : Provided, That such records, papers, effects, and minutes 
shall be kept at the office of the superintendent, and shall be open 
for his inspection. The said board shall meet, upon the call of the 
president or a majority of its members, at such place in the State 
as maybe designated in the call; and shall devise, adopt, and pro- 
cure a seal, on the face of which shall be the words, ** Indiana 
State Board of Education," and such other device or motto as the 
board may direct — an impression and written description of which 
shall be recorded on the minutes of the board and filed in the office 
of the secretary of state ; which seal shall be used for the authenti- 
cation of the acts of the board and the important acts of the super- 
intendent of public instruction. 

When first created in 1852 the board consisted of the superintendent of pub- 
lic instruction and the governor, secretary, treasurer and auditor of state. In 
1855 the attorney-general was added. It remained merely a board of state 
officers, but little interested in or conversant with educational affairs, and exert- 
ing no appreciable influence, till 1S65, when the membership was constituted as 
at present, except the president of Purdue University, who was added in 1875. 
The cities represented have always been Indianapolis, Evansville, and Fort 
Wayne. As a board of professional educators, independent of politics, it has 
been a valuable agent in our educational progress. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4421. Duties and powers. 154. Said board, at its meetings, 
shall perform such duties as are prescribed by law, and may make 
and adopt such rules, by-laws, and regulations as may be neces- 
sary for its own government, and for the complete carrying into 
effect the provisions of the next section of this act, and not in con- 
flict with the laws of the State ; and shall take cognizance of such 
questions as may arise in the practical administration of the school 
system not otherwise provided for, and duly consider, discuss^ and 
determine the same. 



565] STATE BOARD OF EDUCATION. [gg 4421^, 4422 

1. Examination qucstio'ns. By virtue of the considerable power conferred 
by the authorization to take cognizance of matters not otherwise provided for, 
the board prepares qnestions for the examination of teachers, and prescribes 
the time and manner of their use by the county superintendents. This work 
received legislative recognition in 1SS3 by the enactment of the next section, 

2. County siiperintendent. It is the duty of the county superintendent to 
carry out the instructions of the state board and state superintendent, § 4429. 

3. The state board appoints the trustees of the Indiana University. R. S, 
iSSi,§4525. 

[18S3, p. Si. Approved March 3, 1S83, and in force June 5, 18S3,] 

Sec. 4421^, Tiamc in questions, i. Whosoever shall seU, barter, 
or give away to apphcants for license, or to any other person, the 
questions prepared by the state board of education, to be used by 
county superintendents in the examination of teachers, or in any 
way dispose of said questions contrary to the rules prescribed by 
said state board of education, shall be deemed guilty of a misde- 
meanor ; and on conviction, shall be fined in any sum not less than 
ten, nor more than two hundred dollars. [EL Sup. § 339.] 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec, 4422, State certificates. 155. Said board may grant state cer- 
tificates of qualification to such teachers as may, upon a thorough 
and critical examination, be found to possess eminent scholarship 
and professional ability, and shall furnish satisfactory evidence of 
good moral character. They shall hold stated meetings, at which 
they shall examine all applicants, and those found to possess the 
qualifications herein above named shall receive such certificate, 
signed by the president of the board, and impressed with the seal 
thereof; and the said certificate shall entitle the holder to teach in 
any of the schools of the State without further examination, and 
shall also be valid during the life-time of said holder, unless re- 
voked by said board. Each applicant for examination shall, on 
making application, pay to the treasurer of the board five dollars 
as a fee. 

1. Requireme7tts. It is ordered that there shall be but one grade of state 
certificates of qualifications for teachers; and that these shall be granted to 
applicants who shall present satisfactory evidence of good moral character and 
of forty-eight months' successful experience in teaching (of which at least six- 
teen shall have been in Indiana), and shall pass a satisfactory examination in 
orthography, reading, vv^riting, arithmetic, geography, physical geography, 
English grammar, physiology, history and constitution of the United States, 
general history, plane geometry, algebra, elements of physics, elements of 
zoology, elements of botany, English and American literature, rhetoric, moral 
science, and the science of teaching. Provided, that any person holding a valid 
"professional license" [§ 4425, ;»/(?/<? 9] shall be granted a state certificate on 
passing a satisfactory examination in plane geometry, elements of zoology, 
English and American literature, moral science, the science of teaching, gen- 
eral history, and rhetoric. Examinations for state certificates shall be held 
from time to time, as the number of applicants may require. — Order of State 
Boards Nov. i, 1883. 

2. Professional licenses. The state board of education is further empow- 
ered, by an act in force June 10, 1883, to prescribe what shall be the nature and 
extent of the examination for an eight-years' license, and such license shall 
issue only upon the approval of the board, § 4425, note 9. 



§§ 4423» 4424] EDUCATION. [566 

[1873, P- 6S- Approved and in force March S, 1873.] 

Sec. 4423. Pay and mileage of board. 156. The members of said 
board, other than the governor and state superintendent of public 
instruction, shall be entitled to receive for their services, while act- 
ually engaged in the duties of their office, five dollars per day and 
five cents per mile necessarily traveled while so engaged ; which 
amount shall be certified by the board to the auditor of the state, 
who shall 4faw his warrant therefor, payable out of the general 
fund, which sum shall be reimbursed to the general fund by the 
treasurer of the board paying into it that amount out of the money 
received by him as fees for certificates ; and if there be any residue 
of money received as such fees, it shall be expended by the super- 
intendent of public instruction in the purchase of suitable books for 
an office library. Said board shall be allowed the necessary ex- 
penses incurred in the discharge of the duties required of the same, 
for clerk hire, postage, etc.; which expenses shall be paid as the 
expenses of the members of the board are paid. 

Appropriations. The requirement that the auditor of state shall, upon the 
certificate of the board, draw his warrant on the general fund for the expenses 
specified, amounts to a continuing appropriation therefor, which, however, is 
temporarily suspended when an appropriation is made therefor in the biennial 
appropriation bill. — Hord, Atty. Gen. 

[1873, p. 75. Approved and in force March 8, 1873.] 

Sec. 4424. 'County superintendent. 33. The township trustees 
of the several townships of each county shall meet at the office of 
the county auditor of such county, on the first Monday of June, 
1873, and biennally thereafter, and appoint a county superintend- 
ent, who shall be a citizen of such county, whose official term 
shall expire as soon as his successor is appointed and qualified ; 
who, before entering upon the duties of his office, shall take and 
subscribe an oath that he will faithfully perform his duties as such 
officer according to law, which oath shall be filed with the county 
auditor. He shall execute a bond, with freehold surety to the ap- 
proval of the county auditor, payable to the State of Indiana, in 
the penal sum of one thousand dollars, conditioned that he will 
faithfully discharge his duties according to law, and faithfully ac- 
count for and pay over to the proper persons all moneys which may 
come into his hands by reason of such office ; and, thereupon, the 
county auditor shall report the name and post-office address of the 
person appointed to the superintendent of public instruction : Pro- 
vided, however, That the board of county commissioners shall have 
power to dismiss any county superintendent for immorality, in- 
competency, or general neglect of duty, or for acting as agent for 
the sale of any text-book, school furniture, or maps; but no 
county superintendent shall be dismissed without giving him writ- 
ten notice, under the hand and seal of the auditor, ten days before 
the first day of the term of the court of commissioners at which 
the cause is to be heard ; and the said notice shall state the charges 



567] COUNTY SUPERINTENDENT. [§ 4424 

preferred against the superintendent, the character of the instru- 
ment in which they are preferred (whether a petition, complaint, 
or other writing), and the names of those preferring the same. The 
duties required of the school examiner by any act shall hereafter 
be performed by the county superintendent. Whenever a vacancy 
shall occur in the office of county superintendent, by death, resig- 
nation, or removal, the said trustees, on the notice of the county 
auditor, shall assemble at the office of such auditor, and fill such 
vacancy for the unexpired portion of the term, in the manner 
herein provided ; and the county auditor shall be clerk of such 
election in all cases, and give the casting vote in case of a tie, and 
shall keep the record of such election in a book to be kept for that 
purpose. 

1. Amendment void. The act of March 9, 1875, attempting to amend this 
section, and <56 4427,4429 and 4433, is unconstitutional and void, 52 Ind. 420; 67 
Ind. 71. 

2. ^jiovtim for appointment . A majority of all the township trustees of 
the coixnty is a quorum for the appointment of a superintendent, but the person 
appointed must receive the votes of a majority of all such trustees present and 
voting, 125 Ind. 65 ; and the county auditor can not be counted in determining 
whether or not a quorum is present, 113 Ind. 79. 

3. Meeting of trustees. The trustees meet for a regular appointment by 
command of the statute, not by virtue of the auditor's call, but it is proper for 
the auditor to notify them of the time of the meeting. On the occurrence of a 
vacancy the auditor notifies the trustees of the fact, and fixes the day for them 
to assemble to fill it. — Holcomhe^ Supt. The trustees having failed to appoint a 
superintendent on the day fixed by law, adjourned sine die., and afterward, on 
call of the auditor, met and made an appointment; but such action was invalid 
and of no eftect, 67 Ind. 71. But had the trustees adjourned from day to day, 
an appointment made at such adjourned meeting would probably have been 
valid; and, possibly, after adjournment sine die, a mandamus might have issued 
to compel a re-assembling to perform the omitted duty, 74 Ind. 487. 

4. Mode of electioji. The auditor has a right to act as the clerk of the board 
of election, keep a record of the same, and give the casting vote in case of a tie. 
The trustees have the right of controlling the manner of the election. The 
auditor's declaring a person elected does not amount to anything; he has no 
right to make such declaration. It is the duty of the board of trustees to do 
that, and until they finally settle the matter a member has a right to vote. The 
appointment has very few elements of a popular election about it. The law 
simply provides that the township trustees shall appoint, and says nothing 
about the manner in which the appointment shall be made. Any mode that 
they may adopt by which they can arrive at the expression of the wish of the 
majority is sufficient to designate the person to be appointed, and there is noth- 
ing binding until there is a final determination of the subject by the trustees, 86 
Ind. 118. 

5. Casting vote. The county auditor is clerk of the election and gives the 
casting vote in case of a tie, in regular elections as M-ell as in those held to fill 
vacancies. — Holcoinbe, Supt. A tie means that two opposing candidates have 
each an equal number of votes. An equal division on a motion to appoint a 
candidate to the office is not such a tie as entitles the auditor to vote. — Baldtvin, 
Atty. Gen. See 114 Ind. 581. 

6. Who eligible. To J^e eligible to the county superintendency a person 
must he ^ bona' fide resident and elector of the county, § 154. He must have 
been an inhabitant of the county during one j-ear preceding his appointment, 
but it is not essential that he should have been a citizen or elector for so long, 
86 Ind. 11^. Women are held to be ineligible, § 4540, note i. 

7. Recognition by state superintendent. It is made the duty of the county 



§ 4424] EDUCATION. [568 

auditor to report to the superintendent of public instruction the name and 
address of the person appointed. That is the means provided by lav/ for inform- 
ing the state superintendent, who has been appointed, and he has no power to 
decide upon the validity of an election on information furnished from other 
sources, evidence aliujide. That is a question for the courts. — Holcombe, Supt. 

8. Disputed election. The qualifying of the appointee consists in the exe- 
cution and acceptance of the required bond, and taking and subscribing the 
oath of office. A person who has received the certificate of appointment and 
taken the above action is countv superintendent, at least de facto. If the valid- 
ity of the appointment is disputed, the issues may be joined by an action to 
replevin [this is doubtful] the records and properties of the office, or by a writ 
of quo Tjarranto against one of the claimants. — Holcomhe, Siipt. 

9. Appeal on dismissal. An appeal lies to the circuit court from a decision 
of county commissioners dismissing a superintendent from office. While such 
appeal is pending the person dismissed can not act as superintendent, but a 
successor may be appointed, and will hold for the unexpired term, unless the 
person dismissed is reinstated by the court. See 64 Ind. 493, and 41 id. 357. — 
Bald'vin, Atty. Gen. « See also 49 Ind. 64. 

10. Election by ballot — Record- — Evidence. A county superintendent of 
schools, properly elected and qualified, will hold the office till his successor is 
elected and qualified. The record of such election made by the county auditor 
\& prima Jacie correct, and \s pruna facie evidence of svich election. When the 
township trustees' agree that the election of superintendent shall be by secret 
ballot tlie election will be determined by the ballots actually cast; and in a suit 
regarding the'validity,of such an election, the ballots are the best evidence, but 
when they have been lost it is proper for the jurj' to consider the testimony of 
the trustees who cast the ballots, and of those who counted them and announced 
the result, 99 Ind. 300. 

- II •- Who elect. . It is my opinion that township trustees alone can vote in 
the election of a county superintendent, the county auditor, however, having the 
casting vote in case of a tie; and that presidents of city and town school boards 
can not participate in such election. — Hord., Atty. Gejt. 

12. Office for cou7ity superintendent. The county is not required to furnish 
the county superintendent with an office; nor are they liable for the rent of one 
he hires, 96 Ind. 384. 

13. Mandate to compel surrender of records. Mandamus is the proper 
remedy to compel a retiring officer to turn over to his predecessor the records 
and furniture,' pertaining to the office, and it is not necessary to allege in the 
application that such successor is eligible to the office, as is the case in quo 
xvarranto to try title. And mandamus may thus be maintained w-ithout regard 
to whether the votes of a majority of all the school trustees are necessary to 
the valid appointment of a county superintendent, where such trustees recog- 
nize the appointment as valid, and the appointee qualifies and enters upon the 
duties of the office with the acquiescence of all others, 103 Ind. 444. 

14. Resig7iation — Withdrazval. Where, without notice of the withdrawal 
of a resignation previously made, the time arrives for it to take effect, and a 
successor to the incumbent is duly appointed, no formal acceptance of such 
resignation is necessary to deprive such incumbent of title to the office, 103 
Ind. 444. '-- 

15. - Regularity of appointment. One can not contest the regularity of the 
appointment of a successor, who has become invested with an apparent title, by 
refusing to surrender the records of the office, 103 Ind 444. 

16. ' Failure to object to illegal vote. A failure to object to the casting of an 
illegal vote is not a waiver of the right to object to the legality of the election 
after the result is declared; nor can such apparent acquiescence be construed as 
either an implied or informal vote in favor of the officer who voted for himself, 
116 Ind. 458. 

17. County auditor can ?iot dictate the mode of election — Tie. The county 
auditor can not dictate the manner or mode of conducting the election ; and if 
he does the election will be void. Thus, the township trustees of a county met 
at the proper time and place, and took several ineffectual votes, and on the 



569] EXAMINATION OF TEACHERS. [§ 4425 

last ballot one-half of the trustees voted for E., and the other half voted in 
blank. A^ resolution was then offered declaring that E. be appointed. The 
vote upon the adoption of the resokition was evenly divided for and against it. 
The countv auditor thereupon gave a casting vote in favor of the resolvttion, 
and a certificate of election was issued to E. The'election of E. was held void, 
because the trustees must determine, without dictation from the auditor, the 
manner in which the election of the superintendent must be held, and that the 
action of the auditor, in assuming to give a casting vote upon the 'adoption of 
the resolution, was unwarranted dictation. Nor did the vote upon the resolu- 
tion proposed constitute a tie, authorizing the auditor to give the casting vote, 
and there could be no. election under the resolutfon unless, a quorum of all the 
trustees being present, .a majority of such trustees'voted therefor, 114 Ind. 581. 
But where there were eight trustees in a county,' and after meeting and effect- 
ing an organization (by the auditor illegally casting a vote), four voted for A. 
and the remaining four protested against his being declared elected; but A. was 
declared elected ; the?election was held valid, the court declaring that the four 
not voting did not vitiate the election, for A. received a majority of those 
"present and voting," 125 Ind. 65; see 121 Ind. 206. 

18. Trustee voting for himself. A trustee can not legally vote for himself 
for the office of county superintendent ; and if he does, the vote so cast can not 
be covmted in determining the result of the election, 116 Ind. 458. 

19. ^ Failure to give bond — Appeal. The failure to give a bond vv-ithin the 
time required (6 3050^) does not necessarily work a forfeiture of the office ; and 
if the board of commissioners, under § 45207 refuse to approve it, the superin- 
tendent may appeal from their decision, even though such board refuse to 
approve it on the ground that they have removed him from the office, 124 Ind. 
145- 

20. Mandate. Mandate lies to compel the proper officer to approve the 
bond tendered; and it can not be set up as a defense that the county superin- 
tendent was corruptly elected, 124 Ind. 554. 

21. Bond. The county superintendent now gives ty^io bonds. See § 44207. 

[18S9, p. 85. Approved March 2, 18S9, and in force May 10, 1SS9.] 

Sec. 4425. Examination of teachers. 34. Said county superin- 
tendent shall examine all applicants for license as teachers for the 
common schools of the State by a series of written (or printed) 
questions,. requiring answers in writing, and in addition to the 
said questions and answers in writing questions may be asked and 
answered orally, and if, from the ratio of correct answers and 
other evidences disclosed by the examination, the applicant is 
found to possess a knowledge which is sufficient, in the estimation 
of the county superintendent, to enable said applicant successfully 
to teach, in the common schools of the State, orthography, read- 
ing, writing, arithmetic, geography, English grammar, physiology 
and the history of the United States, and to govern such school; 
said county superintendent, shall license said applicant for the term 
of six months, twelve months, twenty-four months, or thirty-six 
months, according to the ratio of correct answers and other evi- 
dences of qualifications given upon said examination, the standard 
of which shall be fixed by the county superintendent; and in 
examining persons for positioris;to teach jin graded schools in cities 
and towns, the county superintendent may take into consideration 
the special fitness of such applicants to perform the services 
required of them, and shall make, on the licenses issued to such 
applicants, a statement of the kind of work for which they are 



§4425] EDUCATIOiN. [570 

especially qualified ; and all applicants, before being licensed, shall 
produce to the county superintendent the proper trustee^s certifi- 
cate or other satisfactory evidence of good moral character: Pro- 
vided, That a six months' license shall be regarded as a trial 
license, and that, no person who hereafter receives a six months' 
license in any county shall be again thereafter licensed in said county 
unless he obtains a grade which shall entitle him toreceive at least 
a twelve months' license : And provided, That any person now pos- 
sessing a twenty-four months' license whose next consecutive 
license shall be for the term of thirty-six months, or any person 
who shall hereafter receive two licenses in succession, each for 
thirty-six months, may receive, at the expiration of such several 
licenses, a license for the term of eight years, upon such an exam- 
ination held by the county superintendent as may be prescribed 
by the state board of education, and such license shall issue only 
upon the approval of the state board of education, and shall be 
styled a" professional license, and shall entitle the holder to teach 
in any of r the schools in this State: Provided, further, That any 
person who has taught for six .consecutive years in the common 
schools of this State and now holds a two [three] years' license to 
teach therein, or who, having previously taught for six consecutive 
years in said common schools, shall hereafter obtain a two [three] 
years' license to teach therein, shall be forever afterward exempt 
from examination so long as he or she shall teach in the com- 
mon schools of the county in which said three years' license was 
obtained ; but if such person shall at any time after said exemption 
accrues suffer a period of one year to pass without having taught 
one school year in the common schools of said county within said 
period, then said exemption shall' cease; and if .such person shall, 
during such exemption, seek employment to teach other or higher 
branches in the com.mon schools of this State than those branches 
which were included in the. examination upon which said three 
years' license was issued, then he or she shall be examined in such 
additional branches. [El. Sup. § 1276.] 

1. This section supersedes the amended act of 1883 (Acts 1883, p. 130). The 
last proviso in the above section is ambiguous. The state superintendent of 
public instruction is of the opinion that the license therein mentioned as "a 
two years' license," and afterwards referred to as "said three years' license," 
was meant to be a three years' license. 

2. ' Evidence of character. A superintendent may require evidence of good 
moral character before the examination commences, and if such evidence is not 
satisfactory, he may refuse to examine the applicant. This is not a wnse thing 
to do,however,since,^if the question of scholarship were settled, a license might 
aftervv'ard be issued on production of satisfactory evidence ; or on an appeal to 
the superintendent of public instruction, the question of moral character alone 
would have to be considered. — Smart, Supt. No person who indulges in such 
immoral practices as profanity, drunkenness, gambling or licentiousness, should 
be licensed to teach. — Hoss, Supt. 

3. Loss of certificate., etc. The certificate is only the evidence of a license. 
It follows that if a teacher loses his certificate he remains licensed, and should 
be so treated, provided he can prove the facts. In such cases a duplicate certifi- 
cate may be issued from the superintendent's record. The failure of an appli- 



57 I J EXAMINATION OF TEACHERS. [§442$ 

cant upon examination does not affect a license previously issued to such appli- 
cant, or afford ground for its revocation. — Smart, Snpt. 

4. Special fit }2ess. No person shall be admitted to the benefits of the pro- 
vision that " special fitness " shall be considered m the examination of teachers 
for the graded schools of cities and towns, except on a presentation of a written 
request of a town or city school board, vvith a statement that said board desires 
to employ said applicant for a certain grade of work named or described, and 
the expediency of complying with such request shall be left to the discretion of 
the countv superintendent. — Resoliitioti of County Superintendents'. Associa- 
tion, 1SS3. 

5. Special licenses. A county superintendent may, upon request of the 
school board of a town or city, examine a candidate for the position of teacher 
of German in the graded schools of such town or city, in such a manner as will 
satisfv him that the candidate is qualified for such work, and issue to the said 
candidate a license to teach the German language as a branch of study in the 
graded schools of a town or city; and the trustees of said town or city may re- 
munerate a person holding such a license for performing the specific services 
therebv authorized out of the common school revenue for tuition. — Hokonibe, 
Supt. " 

6. Illegal issues of licenses. If a new superintendent finds that licenses 
have been illegally issued by his predecessor, he should cancel the records and 
certificates thereof, and notify the school trustees in the county of such action. 
Before taking this action he should carefully investigate the facts, and notify 
the parties interested, giving them an opportunity to show that their licenses 
are valid. — Holconihe,, Supt. 

7. Additional' branches. Ordinarily, an examination in the enumerated 
subiects is sufficient, but when a person is to teach other branches his profi- 
ciency therein should not be left to conjecture. He should be examined by the 
county superintendent in such "other branches" as he is expected to teach. 
This is expressly stated in the law in case a district school meeting has desig- 
nated additional branches (§4502), and is an obvious inference in all cases 
where additional branches are to be taught. — Holcombe., Supt. 

8. Consecutive licenses. The provision of the law which creates the thirty- 
six-months and eight-years licenses contemplates that they should take effect 
consecutively, and not over-lap each other in time. A person who has received 
two county'iicenses of the first grade in succession "may receive at the expira- 
tion of suchvseveral licenses a license for the term of eight years," upon passing 
a certain examination. The intention of the legislature was to relieve teachers 
of approved skill and ability from" the burden of frequent examinations. But 
the benefits of the eight-years professional license are carefully guarded, being 
extended to those persons only who have held consecutively a twenty-four- 
months.license (heretofore issued), and. a thirty-six-months license, or who shall 
hold hereafter two thirty-six-months licenses in succession. The period of the 
currency of these two licenses is provided as a trial period in which the teacher 
may gain experience and prove his ability, and I think the law, should be inter- 
preted as not permitting such period to be abridged by granting the second or 
third license more than thirty days before the expiration of the one preceding 
it. Yet the. examination for such license may not improperly be held within a 
reasonable time previous to the expiration of the preceding one. Licenses, to 
be consecutive, need not be issued in the same county. — Holcombe, Supt. 

9. Professional licenses. It is ordered that persons who have received two 
county licenses of the first grade, in conformity with 'the statO''' superintendent's 
opinion on "consecutive licenses" (note 8, above), maybe admitted within one 
year of the expiration of the second of such licenses to an' examination for an 
eight-years professional ]icense,Avhich shall comprise the subjects of elementary 
algebra, elements of physics, elements of botany, grammar, civil government, 
American literature, and the science of teaching. Such examination shall be 
conducted by the county superintendents in the several counties, upon questions 
prepared by the state board. The manuscripts shall be sent to the board for 
gradation, and the certificates granted shall take effect upon the expiration of 
the thirty-six months licenses held by the persons receiving them. An examiEii° 



§ 4426] EDUCATION. [5/2 

for eight-years licenses shall be held in May, 1886, and annually thereafter. — 
Order of State Board, Nov. 1,1883. 

10. Miscellaneous. A license maybe refused to an applicant on the ground 
of incompetency to govern a school. A license maj^ be issued without the trus- 
tee's certificate of character, if the superintendent is satisfied on the subject. 
The superintendent is not bound to examine applicants, who have no intention 
to teach in the county, as the examinations are not provided for the amusement 
of novices. A license can not legally be antedated, but if antedated it is good 
from the day when it is issued for the period named on its face. — Bloss^ Suft. 

11. Examination in t'cvo counties. There is nothing in the law directly pro- 
hibiting a superintendent from issuing a license upon manuscripts made in an- 
otlier county under the supervision of another superintendent. ' But the practice 
is not entirely safe, and should be carefully guarded. If the manuscripts are 
sent by the superintendent of another county, with his certificate that they have 
been fairly and honestly made, and his recommendation of the applicant, as to 
character and ability, the superintendent receiving them may grade them, and 
if they prove satisfactory, issue a license to the applicant. — Holconibe, Supt. 

12. Superintendent does not act judicially. A county superintendent in the 
granting or refusing of a license does not act as a judicial officer, 104 Ind. 548. 

13. Liability for refusing license — Discretion. The statute confers upon 
the county superintendent a discretion on the subject of licensing teachers, 
which is so far analogous to judicial discretion that he is protected from any 
claim for damages on account of any mere mistake in his decision, or error in 
judgment, either in granting or withholding a license. But he is liable in dam- 
ages for maliciously withholding a license to teach from an applicant entitled to 
receive the same, and he will be held to have acted maliciously where he acts 
either from willful and wicked or from corrupt motives, 104 Ind. 548. 

14. Issuing certificate. There is no legal distinction between the granting 
of a license to teach and the act of issuing a certificate of that fact. The terms 
are controvertible, and the "licensing" implies the issuing to an applicant of a 
written permission to teach in the public schools, 104 Ind. 548. 

15. Record of license. In an action against a county superintendent f'or 
maliciously withholding a license, oral proof of an admission by the defendant 
that he had granted a license to the applicant is inadmissible, unless it is first 
shown that he kept no such record as reqviired by the statute, or that such 
record was incorrect ; but in order to prove that no record was kept, or that the 
one kept was incorrect, it must be averred in the pleading that^such is the fact, 
104 Ind. 548. The presumption is that the superintendent kept a record of his 
proceedings, which would itself be the best evidence, 104 Ind. 548. 

16. Branches taught and books used. The legislature has the power to pre- 
scribe a course of study and to require a designated series of books to be used 
in the schools, and to require that the books selected shall be obtained by the 
school ofiicers from the persons to whom a contract*for supplying them may be 
awarded. It may not only • prescribe regulations for using the books desig- 
nated, but it may, also, declare how the books shall be obtained and distributed, 
122 Ind. 462; 25 Minn, i, S. C, 33, Am. Rep. 450; 5 Sawy. 502; 18 Nev. 173; 
55 Cal, 331 ; 49 Cal. 684. 

[1865, p. 3. Approved and m force March 6, 1S65.] 

Sec. 4426. May revoke licenses. 36. The county superintendent 
shall have power to revoke licenses granted by him or his prede- 
cessors, for incompetency, immorality, cruelty, or general neglect 
of the business of the school; and the revocation of the license of 
any teacher shall terminate his employment in the school which 
such teacher may have been employed to teach. 

I. Procedure. In the revocation of a license the superintendent may act 
upon his own knowledge, or he may proceed upon petition of the patrons." In 
the former case he should make out and record charges and specifications, based 
on his own knowledge, and furnish the teacher a copy thereof, citing him to 



573] EXAMINATION OF TEACHERS. [§§4427,4428 

appear at a certain time and answer, with such evidence and explanations as he 
may be able to give. The answer and evidence should be made matter of rec- 
ord, together with the finding of the superintendent. In case a petition for 
the revocation of a license is received from patrons, the superintendent may 
dismiss it if the complaints are of a frivolous character. A mere petition is not 
enough. Definite charges and specifications should be filed with it. When 
such charges are received, the superintendent should fix an early daj' for the 
trial, notify the teacher of the pendency of charges and furnish him a copy 
thereof, and notify all parties interested of the time and place at which the trial 
will be held. An accurate record of all the proceedings should be made and all 
papers filed, for use in case of an appeal to the superintendent of public instruc- 
tion. Whenever a license has been revoked the superintendent should make a 
record of the fact, and immediately notify all the trustees of the county. — 
Sjncrt, Si'.pt. 

2. A license a vested right. A license having once been granted, the 
teacher acquires a proprietary interest in it. It is in one sense property. No 
teacher should be deprived of his license without an opportunity to answer 
charges that may be brought against him, whether by the county superintend- 
ent or others. — Smarts Supt. 

[1S73, p. 75. Approved and in force March 8, 1873.] 

Sec. 4427. Examinations — License. 37. The county superintend- 
ent shall hold at least one public examination in each month in 
the year in his county ; and in no case shall he grant a license 
upon a private examination ; and all licenses granted by him shall 
be limited to the county in which they are granted. 

1. This section was amended in 1875 (Acts 1875, P- ^Z^)i ^'ut the amend- 
ment was void, 53 Ind. 420. 

2. Comments. The day of the examination should be the same in each 
month. If such a day is fixed and adhered to, convenience will be secured to 
teachers and to the public. As the object of the law will not be defeated, but 
rather promoted thereby, it is held that the examiner may hold more than one 
examination each month. An examination will be public in the sense here 
required when it is publicly announced and is held in a public hall or office. — 
Hoss^ Supt. 

[1865. Approved and in force March 6, 1865.] 

Sec. 4428. Eecord-book — Eeport to state superintendent. 38. The 

county superintendent shall provide a blank-book at the expense 
of the county, in which he shall keep minutes of his proceedings, 
and shall deliver said record, and all other books, papers, and 
property appertaining to his office, to his successor, and take a 
receipt therefor. Said superintendent shall, in the last week of 
May, annually, report to the superintendent of public instruction, 
the names of the persons to whom he has granted license since the 
last report, for his county; distinguishing between those licensed 
for six, twelve, eighteen, and twenty-four months; giving the 
number of males, and the number of females, and the total num- 
ber licensed ; and the number, but not the names, of applicants 
for license who have been rejected ; and the number of licenses 
revoked. 

1. The amendment of the teachers' license law abolished the eighteen- 
months and created a thirty-six-months license. This section was inadvert- 
ently not changed, but the report must be conformed to the new arrangement. 

2. See § 4425, notes 14 and 15. 



§4429] EDUCATION. [574 

[1873, p. 75. Approved and in force March 8, 1873.] 

Sec. 4429. General duties. 39. The county superintendent shall 
have the general superintendence of the schools of his county. 
He shall attend each township institute at least once in each year, 
when he shall preside at the same and conduct its exercises. He 
shall visit each school of the county at least once each year, for 
the purpose of increasing its usefulness and elevating, as far as 
practicable, the poorer schools to the standard of the best. He 
shall encourage teachers' institutes .and associations, and shall ^ 
labor, in every practicable way, to elevate the standard of teaching 
and to improve the condition of the schools of the county. In all 
controversies of a general nature arising under the school law, the 
opinion of the county superintendent shall first be sought; whence 
an appeal may be taken to the state superintendent, on a WTitten 
statement of facts, certified to by the county superintendent : Pro- 
vided, That nothing in this act shall be so construed as to change 
or abridge the jurisdiction of any court in cases arising under the 
school laws of the State ; and the right of any person to bring suit 
in any court, in any case arising under the school laws, shall not 
be abridged by the provisions of this act. He shall, at all times, 
carry out the orders and instructions of the state board of educa- 
tion and the superintendent of public instruction, and shall consti- 
tute the medium between the state superintendent and subor- 
dinate school officers and the schools : Pivvided, That city schools 
having a superintendent employed by their board may, at the re- 
quest of said board, be exempt from the general superintendence 
authorized in this section. 

1. The superintendent has the care and oversight of the schools of his 
county, with authority to direct in their organization and management. — Hof- 
kins, Siipt. 

2. Visitation. The provision requiring superintendents to visit their 
schools once a year is peremptory. If he fails to do so, it is a good cause of 
removal. There can hardh^ be any grosser neglect than a failure to visit the 
schools at least once a year. — Baldivin, Atty. Gen. To make his visitations of 
much value the superintendent ought to visit each school at least twice a year. 
This can be done under the law by giving each school a half day at a visit. I 
think it is safe to say it was the intention of the legislature that the superintend- 
ent should be allowed at least as many days for visiting the schools as he has 
diiferent teachers to visit. The commissioners should not in any case restrict 
him to a less number of days than this, and if he is a prudent man it w^ould be 
safe to let him visit at his own discretion. The restriction can be placed upon 
him at any time if it be shown he abuses his privilege. — Smart., Supt. 

3. Exemption of cities. This privilege is not extended to incorporated 
towns. The request should be addressed to the county superintendent, and 
should be entered in the records of the city school board. From the date of 
the request and so long as a city superintendent is employed the county super- 
intendent has no authoritj^ over the city schools, but such authority will revive 
if the city board fails to employ a superintendent. — Holcombe, Supt. 

4. Vaccination. The duty of enforcing rules regarding vaccination of 
school children belongs primarily to town, city, and county boards of health, 
and secondarily, and after written notice from the state board of health, to the 
county superintendent. — Baldzvin, Atty. Ge7i. See R. S. iSSi. ■^ 4994. 

5. Power as to course of sticdy and rules. The management and control 



575] ' DUTIES OF SUPERINTENDENT. [§§4430,4431 

of the schools is conferred by law upon the trustees, and this power involves 
the right to prescribe a course of study and make rules and regulations. But 
the trustees also appoint a county superintendent, who, in a large department 
of school government, is the representative and agent of the trustees, and to 
him their powers are delegated so far as is necessary to successful administra- 
tion. I think, therefore, that if neither the county board of education nor the 
trustees individually have taken the necessary action, the superintendent may 
arrange a course of study and direct its enforcement in the schools, and may 
make reasonable rviles and regulations, and the refusal of a teacher to obey the 
superintendent in these particulars would be such " neglect of the business of 
the school" (§ 4426) as would warrant a revocation of his license, or would in- 
dicate such incompetence "to successfully teach" (§ 4425) as would warrant a 
refusal to grant him another license. — Holconibc^ Stipt. 
6. Procedure in appeals. See § 4538. 

[1873, p. 68. Approved and in force March 8, 1S65.] 

Sec, 4430. When nmst enumerate. 40. When any trustee shall 
neglect to file with the county superintendent an enumeration oi 
the children of the township, town, or city, as required by section 
4472, the county superintendent shall, immediately after the first 
day of May in each year, em.ploy a competent person to take the 
sam.e, and allow a reasonable compensation for such services, pay- 
able from the special school revenue of the township ; and shall 
proceed to recover the same in the name of the State of Indiana, 
for the use of said revenue of said township, by action against the 
said trustee in his individual capacity; and in such suit the county 
superintendent shall be a competent v/itness. 

[1883, p. 120. Approved and in force March 6, 1883.] 

Sec. 4431. Annual reports. 41. The county superintendents 
shall, on or before the fifteenth day of May, annually, make out 
and forward to the state superintendent the enumeration of their 
respective counties, v/ith the same particular discrimination re- 
quired of the trustee. They shall, on or before the first day of 
September, annually, furnish the statistical information, which 
trustees are required to report to them in such form as may be 
prescribed by the superintendent of public instruction. They 
shall, also, furnish with such statistical report, such additional in- 
formation embodied in a written report relative to the condition 
of the schools, school-houses, and the general progress of educa- 
tion, etc., in the county, as the state superintendent may from 
timie to time call for. On failure of any county superintendent to 
make his report of enumeration by the first day of September 
[fifteenth day of May], his county shall be subject to a diminution 
of twenty-five dollars in the next apportionment of school revenue 
by the state superintendent; and, on failure to make his statistical 
and other reports by the fifteenth [first] day of September, his 
county shall be subject to a diminution of ten dollars in the next 
apportionment likewise. The sum thus withheld may be collected 
from said county superintendent, in a suit before a justice of the 
peace, prosecuted in the name of the State by any person living 
in said county v/h.o has children enumerated for school purposes, 



§§4432,4433] education. [576 

for the current year, who is aggrieved by said diminution. Said 
suit shall be commenced within two years from the time when said 
report was due, and not afterward: Provided, That said county 
superintendent may discharge himself from liability to such suit by 
a certificate of the postmaster, that said report was mailed in due 
time, together with his own affidavit of that fact. [EL Sup. 
§ I273-] 

1. Amendments explained. The school law of iS6i for the first time re- 
quired the trustees to report the enumeration to the covmtj examiner, and the 
examiner to report it to the superintendent of public instruction. The report 
was then made on or before September ist. The amendment of the section in 
1873 changed the date to May 15th, as it still remains, and fixed September 15th 
as the date of the statistical report. The amendment of 1883 changed this lat- 
ter date to September ist. In re-writing the section for amendment in 1SS3 a 
mistake was made in the latter part by naming September 15th instead of May 
15th, and the 15th instead of the ist of September, as the last dajs of grace for 
the several reports. — Holco7nbe^ Suft. 

2. Private institutions. County superintendents are expected to furnish 
statistical and other reports relative to private schools, high schools, colleges, 
and other private institutions of learning within their respective counties, so as 
to enable the superintendent of public instruction to present a viev/ of all the 
educational facilities of the State. — Ho;pki7is, Sicpt. 

3. Bureau of statistics. County superintendents are also required to fur- 
nish information to the state bureau of statistics. R. S. 18S1, § 5720. 

[1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4432. Apportionment — Eeport. 42.- The county superintend- 
ent shall make out, from the lists of enumeration and the reports 
of transfers, the basis of the apportionment of school revenue to 
the several townships, towns, and cities of their respective counties, 
and parts of congressional townships of adjoining counties whose 
congressional township fund is managed in their counties, and 
report the same to the proper county auditors by the first day of 
June, annually, so as to enable county auditors to accurately ap- 
portion the school revenue for tuition. 

I. Congressional to~aj7iships. The basis of apportionment should show, by 
number and range, the congressional townships, or parts of congressional town- 
ships, which form each civil township, the number of children enumerated in 
each of such parts ; also the whole number of children enumerated in each civil 
township. With the basis of apportionment he should file with the auditor a 
separate statement showing what congressional townships whose funds are 
managed in his county are divided by the county line ; also the number of 
children enumerated in each part of such townships — Hoss^ Supt. 

[1873, p. 75. Approved and in force March 8, 1873.] 

Sec. 4433. Gompensation. 43. The county superintendent shall 
receive four dollars for every day actually employed in the dis- 
charge of the duties required by this act. But before the county 
commissioners shall allow his per diem, the same shall be pre- 
sented in a bill of account, stating, in separate items, the nature 
and amount of service rendered on each day for which he claims 
compensation; which bill of account shall be verified by affidavit 
to the effect that the same and each item thereof is just and true. 
The county auditor shall draw his warrant on the county tseasurer 



57/] DUTIES OF SUPERINTENDENT. [§§4433 

for the amount allowed by the board In favor of said superintend- 
ent, and the treasurer shall pay the said warrant out of the ordinary 
county revenues: Provided, Iiozuever, That the said board of com- 
missioners shall have power to determine the number of days in 
each year in which the county superintendent may labor in the 
performance of the duties required of him in visiting schools: 
Provided, furtlier, The number of days so allowed in each year for 
visiting schools shall not be less than the whole number of schools 
in such county over which such superintendent has control ; and 
he shall receive no perquisites whatever. 

1. Limitatio?! of visits — Mileage. Until the board has established such 
limitation or number the superintendent is justified in claiming pay for every 
dav actually used by him in performing such duties; and the board can not, 
after he has performed such labor, then limit the number so as to reduce it 
below the number of days he has labored in the performance of his duties in 
visiting the schools for the past year. They must establish such number before 
he has performed the labor, and if they do not and he exceeds the number they 
afterward establish, he is not bound by such action of the board, except as to 
work he may do in the future. This statute makes no allowance for mileage. — 
Bald'vin, Atty. Ge7i.; § 4429, 7iote 6. 

2. Blanks — Stationery — Postage. The blanks for reporting condition of 
schools, and the printed course of study, ordered by the county board of educa- 
tion, may be paid for by the trustees of each township out of the special school 
revenue, and the bills presented by them to the board of commissioners in their 
annual settlements. In regard to blank forms of licenses being paid for by the 
county, that is a matter of economy for the commissioners to decide upon. If 
thev will not pay for such blanks, then the superintendent must furnish them at, 
his own expense, or write them out. In the last case he would be entitled tO' 
charge his per diem while so actually employed. Probably, under § 6028 R. S. 
i88i,the board is authorized to furnish him stationery, which may include these 
blanks. So of postage and expressage. There are certain articles and informa- 
tion which the superintendent must furnish the teachers and officers of schools. 
He can do this in person, or else by mail or express. When a letter will do as 
Avell as a personal visit, and it is necessary to convey the information, it is 
economy in the county to furnish postage rather than have the superintendent 
go personally and pay him at the rate of four dollars per day, — Baldzui?i^ Atty. 
Geji. 

3. Office furnished The county commissioners are not required to furnish 
the county superintendent an office. Even if they were required to furnish him 
an office, they would not, in the absence of a contract, be liable to him for the 
use of an office of his own for the purposes of the county sviperintendent, 96 Ind. 
384. It '^ undoubtedly proper, and not at all in conflict with the above de- 
cision of the court, that the commissioners should allow the county superin- 
tendent the use of a room in the court-house, whenever possible. The newer 
court-houses invariably provide accommodations for the county superintendent. 
— Holcomhe, Supt. 

4. Reports to bnreatc of statistics. The duty imposed on the county super- 
intendent of schools, by R. S. 1881, § 5720, to make reports to the bureau of 
statistics, is an official duty imposed upon the officer, for which he is not entitled 
to compensation, 95 Ind. 427. 

5. From the fact that R. S. 1881, § 5720, enumerates a large number of per- 
sons or classes of persons from whom reports may be exacted, I am of the 
opinion that each person or officer mentioned can be required to report only 
those matters with which their business makes them conversant. Thus the 
county superintendent can be required to report the educational statistics of 
the county, but can not be made a collector of general information. — PIoIco/>iIh\ 
Supt. 

6. Amendmetit to this section illegal. In 1S75 (Acts 1875, p. 131) it was at- 
37 



§§4434—4436] education. [578 

tempted to amend this section, but the amendment was held void, 52 Ind. 420; 
70 Ind. 208. 

7. Allowance of claim. In making an allowance of the claim of the county 
superintendent for services the county commissioners act in a legal capacity; 
and the allowance is a bar to a further claim, even though such former claim 
was filed and allowed under an invalid statute, 70 Ind. 208; 71 Ind. 185. 

8. Alloxvance of part of claim. The allowance of part of the claim of the 
county superintendent is a bar for the allowance of the remaining part, 71 Ind. 
185. 

[1S75, P- 13^- Approved and in force March 9, 1875.] 

Sec. 4434. Duty as to apportionment. 6. Such superintendent 
shall see that the full amount of interest on school fund is paid 
and apportioned, and, when there is a deficit of interest of any 
school fund, or loss of any school fund or revenue by the county, 
that proper warrants are issued for the reimbursement of the same ; 
but no per centum, beyond what is provided for herein and allowed, 
shall in any case be paid him by said board of commissioners. 

This was a supplemental section to an act, all the rest of which was declared 
void, 52 Ind. 420. 

[1873, p. 75. Approved and in force March 8, 1873.] 

Sec. 4435. Buty as to school fund. 7. The official dockets, 
records, and books of account of the clerks of the courts, county 
auditor, county commissioners, justices of the peace, prosecuting 
attorneys, mayors of cities, and township and school trustees, 
shall be open at all times to the inspection of the county superin- 
tendent ; and whenever he shall find that any of said officers have 
neglected or refused to collect and pay over interest, fines, forfeit- 
ures, licenses, or other claims due the school funds and revenues 
of the State, or have misapplied the school funds or revenues in 
their possession, he shall be required to institute suit in the name 
of the State of Indiana for the recovery of the same, for the benefit 
of the school funds or revenues, and make report of the same to the 
board of county commissioners and to the state superintendent. 

Instittitiiig suits. It was held by the supreme court in Moore v. State, 55 
Ind. 360, that the section which now appears as R. S. 1881, § 5668, repealed so 
much of this section as authorized the superintendent to bring actions, and 
made the attorney general the only proper relator; but in tlie later case of 
Carr v. State, 81 Ind. 342, the court overruled [disapproved] its former decision, 
saying: "We perceive no reason for saying that there is any inconsistency 
between this act which confers upon the attornej^-general power to collect and 
to sue, and the previous acts which conferred similar power on other officers. 
They may well stand altogether, and Avhichever officer first institutes a suit will 
have the precedence." In view of the uncertainty surrounding this question it 
would probably be held to be a sufficient compliance with the law if the super- 
intendent should examine dockets and make an investigation whenever he has 
reason to suspect that collections have been neglected, or school funds or rev- 
enues misapplied, by the officers named above, and should notify the attorney- 
general in case there seems to be ground for a suit. — Holcombc, Supt. 

[1877, p. 122. Approved and in force March 2, 1S77.] 

Sec. 4436. County board of education. 8. The county super- 
intendent and the trustees of the townships, and the chairman of 



579] COUNTY BOARD OF EDUCATION. [§4436 

the school trustees of each town and city of the county shall con- 
stitute a county board of education. Said board shall meet semi- 
annually at the office of the county superintendent on the first 
days of May and September (unless the said days be Sunday, and 
if so on the day following), a majority of whom shall constitute a 
quorum. The county superintendent shall preside at the meetings 
of the board, shall be allowed to vote on all questions as other 
members of the same are allowed to vote. Said board shall 
consider the general wants and needs of the schools and school 
property of which they have charge, and all matters relating to 
the purchase of school furniture, books, maps, charts, etc. The 
change of text-books, except cities, and the care and management 
of township libraries, shall be determined by such board, and each 
township shall conform as nearly as practicable to its action ; but 
no text-book hereafter adopted by the county board shall be 
changed within six years from the date of such adoption, except 
by unanimous vote of all the members of such board. Provided^ 
That any text-book heretofore adopted by the county board of 
education shall not be changed within three years from the date 
of its adoption. 

1. This section has been repeaied in manj of its provisions with respect to 
the choice of books, by section 4420a and those following on the subject of 
school books. The schools of the county must adopt and use the books now 
furnished in accordance with the provisions of those sections. We append, 
however, a number of decisions of public officers, still applicable under the 
provisions of this section, yet remaining in force. 

2. Adjourned^ not called meetings. Thi lav/ provides for the assembling 
of the county board semi-annually on the first days of May and September. 
The board having met on the first day of September they would have a right 
to adjourn from day to day until the business before them was completed. But 
if they have adjourned sine die., they would not have a right to meet any more 
until the first day of May. — Woollen, A tty. Gen. I think this opinion of Attorney- 
General Woollen properly states the law on the subject. See 67 Ind. 71 ; 74 
Ind. 491. — Hard,, A tty. Ge7t. 

3. ^uortnn, course of study, rules and regulations, record, etc. In the 
absence of the county superintendent the board may appoint one of its mem- 
bers president ^ro tern. No action can be taken by the board unless a majority 
of all the members are present. If such majority be present at any meeting 
the board may take legal action upon suitable questions by a majority vote of 
those present; but som^e questions require a majority vote, and others a unani- 
mous vote, of all the members of the board. It is very important that school 
officers and county boards should make a careful record of their proceedings. 
If a board takes any legal action, and fails to record it or makes an incorrect 
record, the record can be amended by order of the board at a subsequent meet- 
ing. A legal act is not necessarily void by reason of a failure to make a record 
of it; but if a question should arise as to the action of a board, evidence may 
be taken at a subsequent meeting outside the records, and a new record may be 
made in accordance with the fact as ascertained. — Smart, Supt. The county 
board and trustees have the right to make such rules and regulations, according 
to law, as svill tend to promote the general good of the public schools, and it is 
the duty of teachers to carry out such rules in good faith. — Bloss, Supt. 

4. Can not make contracts. The county board of education has no power 
to make contracts. It is merely a quasi corporation with but limited powers, 
and is nowhere authorized to contract, or sue or be sued. As a board it has no 
control of revenues, nor power to order any expenditure. But all or any num- 
ber of the trustees may join together in purchasing or contracting for supplies, 



§ 4437] EDUCATION. [580 

and such action may often be advisable. It is not, however, the action of the 
board. — Holcomhe^ Supt. 

5. Libel. A newspaper publication charging that a county superintendent, 
for a consideration in money, had, by the use of his influence, induced the 
county board of education to order a change in school books, Avas held to be a 
libel m the sense of section 1925, R. S. 1S81, on the subject of criminal libel, 96 
Ind. 461. 

6. Legislature may prescribe duties of officers. The pov>-er over the school 
system is legislative and exclusive, and the legislature has authority to impose 
upon all ofl^.cers whose tenure is legislative, such duties respecting school affairs 
as it deems proper. All such officers take their offices cujn onere, and must do 
what the legislature commands, or else resign, 123 Ind. 462. 

1 1S59, p. 181. Approved March 3, 1859, and in force August 6, 1859.] 

Sec. 4437. School township, i. Each and every township that 
now is, or may hereafter be organized in any county in this State, 
is hereby also declared to be a school township, and, as such, to be 

a body politic and corporate, by the name and style of ** 

School township of county," according to the name of the 

township and of the county in which the same may be organized ; 
and, by such name, may contract and may be contracted with, sue 
and be sued, in any court having competent jurisdiction. 

1. Succession to districts. All school-houses heretofore built by districts 
become the property of the townships in which the districts are situated, all 
debts of districts become the debts of the townships, and all school-houses 
must hereafter be built at the common expense, and become the common prop- 
erty of the townships. — JLarrabee, Supt. 

2. Corforatio7is distinct. There are two corporations in a township [co- 
terminous m territory], with almost the same name. * '^ * The first is de- 
nominated *a civil township, the second a school township. * * * It must be 
contemplated that the funds, etc., of these two corporations shall be kept sepa- 
rate. It is as an officer of the school township, and not as an officer of the civil 
township, that the trustee has authority and power to levy a tax for the erection 
of school- houses, and to expend the same for that purpose. We think it must 
follow that it is as trustee of the school township and not as trustee of the civil 
township that the trustee must contract for the building of school-houses. We 
do not think the trustees of the civil township can legally contract for the 
building of a school-house and make the civil township liable therefor, 47 Ind, 
554; 62 id. 230; 96 Ind. 185; 26 N. E. Rep. 182; S. C. 126 Ind. 281. 

3. Intention considered. But a note showing on its face that it was given 
in payment for articles furnished for the use of schools, though executed by a 
trustee apparently in the name of the civil township, binds the school township, 
74 Ind. 93; 81 Ind. 515. 

4. Suit on predecessor'' s bo?id. A township trustee may sue his predecessor 
and the sureties on his bond and recover moneys due both the civil and school 
township; but on a complaint in which he sues only as trustee of the civil 
township he can not recover money due to the school township, 47 Ind. 465. 

5. School-house. A civil township has no power to build a school-house, 
nor to bind itself for the cost of one; and a complaint against it to recover the 
cost thereof, although good as against the school township, will be bad as to 
the civil township, 52 Ind. 114; 62 Ind. 230; 69 Ind. 102. A suit against a 
" township trustee," designating him as such, to enjoin the erection of a school- 
house, is bad on dem.urrer. It should be against the " school township trustee," 
26 N. E. Rep. 182 ; S. C. 126 Ind. 281. 

6. Presumption. When a township is designated without the word 
"school," it must be understood to be the "civil" township, 52 Ind. 114; 62 
Ind. 230; 26 N. E. Rep. 182 ; S. C. 126 Ind. 281. • 



58 1] SCHOOL CORPORATIONS. [§ 443/ 

7. Sif/f ag-aifist the school trustees. A suit can not be maintained against 
the school trustees of a township ; it must be against the " School Township of 

/" tilling the blank with the name of the township, 52 Ind. 267; 51 Ind. 

206; 75 Ind. 36S; and an action against the "trustee of licensed school town- 
ships"' is against the township and not against the trustee, 26 N. E. Rep. 567. 

S. School taxes. A suit against a civil township concerning school taxes 
can not be maintained, 59 Ind. 65. 

9. Loa?i of money. A loan of money to a township trustee for the purpose 
of completing a needed school- house, the trustee not then having funds in his 
hands to furnish it, and the expenditure of the money for such purpose, binds 
the school township, 73 Ind. 501, although he has no authoritj^ to borrow 
money, 75 Ind. 361. In such a case it must be averred and proved that the 
school township received the benefit of the money, 75 Ind. 361, 36S; 102 Ind. 
464; 9S Ind. 497; S3 Ind. 121; but see note 10. 

10. Promissory note. A township trustee has authority to buy school fur- 
niture for the school township, and to give the promissory note of the school 
township therefor; and pajanent can not be resisted on the ground that the 
goods were not needed, and the price too high, unless yr«z/<^ is shown, nor then 
without an offer duly made to return the goods, 81 Ind. 515. Such obligation 
constitutes /r;?«rt facie a good cause of action against the school township, loi 
Ind. 503. See, however, 102 Ind. 464, and 107 Ind. 43, The note is not invalid 
because sections 4438(t and 44381^ have not been complied with, loi Ind. 503; 
S3 Ind. 121. But promissory notes illegally issued are void in their inception, 
and create no right of action m any one, 124 Ind. 193; 116 Ind. 130; 112 Ind. 
323; 27 N. E. Rep. 329. But see § 4438c. 

11. Mandate or suit. Where the ordinary civil action will afford the plain- 
tiff an adequate legal remedy, and especialW where the validity of his claim is 
controverted, he can not resort, in the first instance at least, to the extraordin- 
ary proceeding by mandate, 96 Ind. 185. 

12. When note void. If the school trustee have money in his hands derived 
from the school revenues or funds, he can not borrow money and bind the town- 
ship thereby, and the lender can not be subrogated to the rights of the persons 
holding claims against the school township, 102 Ind. 464. 

13. Bank deposits. Where the trustee of a school corporation executes 
promissory notes in the name of the corporation, deposits the money in his own 
name, and draws it out upon checks signed by himself as an individual, he be- 
comes the creditor of the bank for such deposits, and the transaction is one be- 
tween the bank and its depositor, 102 Ind. 464. 

14. Authority to borrow money. The trustee of a school corporation has no 
authority to borrow money and execute promissory notes therefor in the name 
of the corporation, 102 Ind. 464. 

15. Estoppel. Certificates of indebtedness issued by the trustee without any 
cdnsideration are void and can not be enforced against the township; nor, in 
such a case, will the acts, conduct, or promises of the trustee, or of his successors 
in office, estop the township from pleading the want of consideration, as a suf- 
ficient defense to any suit against it upon such order or certificate, 90 Ind. loi; 
124 Ind. 193. 

16. Limited authority — Notice. A school corporation is one of very lim- 
ited powers; the authority of the township trustee is purely statutory, and all 
who deal with him must, at their peril, ascertain the extent of his authority, 102 
Ind. 464; 107 Ind. 43. 

17. Statute of limitation. If it is apparent that the suit is against a school 
corporation, although indistinctly stated, the complaint may be amended so as 
to make it clearly a case brought against such corporation, although between 
the time of filing the original complaint and making the amendment the statute 
of limitations has become a bar; the amendment relates back to the time of ril- 
ing the original complaint, 104 Ind. 168. 

18. Complaint. A complaint against a school township, on a contract for 
school supplies, to be good must allege that svich supplies are necessary and 
suitable for the use of the public schools of the township, and that they have 



§ 4438] EDUCATION. [5 82 

been delivered to ana accepted bj such township, 107 Ind.43; 26 X. E. Rep. 567; 
27 N. E. Rep. 329. 

19. Employment of teacher. If it be shown that the plaintiff. was employed 
bv x\., who Mas at the time trustee of the township, that is sufficient to show 
that the employment was by a school trustee, the township trustee being ex 
officio school trustee, 119 Ind. 320. But this would not be the case if the action 
was against a school town ; for it has both civil and school trustees. 

20. Judicial notice. The courts do not judicially know the names of the 
townships of a county, 34 Ind. 405. Courts take judicial notice that the trustee 
of the civil is trustee of the school township ; and that in contracting for school 
apparatus, he contracts as trustee of the school township, 106 Ind. 233. 

21. Name. The name of a township for school purposes is "The school 

township of ," supplying the civil name of the township, as "Wayne," 

and adding " of county " ; of a city it is " The school city of ," add- 
ing the name, as " Logansport," the addition of the county being unnecessary, 
for the court judicially knows the county in which a city (t»r, town) is incorpa- 

rated ; of a town, "The school town of ," adding the name of the town, 

as " Royal Center." the name of the county in which the town is situated being 
unnecessary, 47 Ind. 554 ; 55 Ind. 7; 62 Ind. 257 ; 67 Ind. 380. The name of a 
township for civil purposes, illustrated by an example, is " Wayne township of 
]NIarion county," R. S. 18S1, § 5990. 

22. Service of process. In an action against a school township the process 
is served upon the trustee, and a return of service upon the trustee of the town- 
ship, without stating that he is the trustee of the " school'' township is sufficient. 
But in a case against a school town the process must be served upon the 
'•school" trustees, or one of them at least, and not upon the trustees of the civil 
town, and the sheriff's return must show that the person served w-ith the proc- 
ess was a school trustee of the town. In an action against a " school " city, the 
process must be served upon at least one school trustee, and the return must be 
as explicit as in the case of a school town, 55 Ind. 7. See R. S. 1881, § 5990, 
See 26 N. E. Rep. 567. 

23. Bribery. See 106 Ind. 233. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4438. Towns and cities. 4. Each civil township and each 
incorporated town or city in the several counties of the State is 
hereby declared a distinct municipal corporation for school pur- 
poses, by the name and style of the civil tow^nship, town, or city 
corporation respectively, and by such name may contract and be 
contracted with, sue and be sued, in any court having competent 
jurisdiction ; and the trustee of such township, and the trustees 
provided for in the next section of this act, shall, for their town- 
ship, town, or city, be school trustees, and perform the duties of 
clerk and treasurer for school purposes. 

1. See § 4437, note 2i\ and R. S. 1881, ^^S 5990. 

2. Corporations i^idependent. Each civil township, and each incorporated 
town and city is a distinct school corporation, entitled to receive and expend its 
proper school moneys independent of any control by any other such corpora- 
tion, 64 Ind. 275. 

3. Designation i7i suits. The character in which an incorporated town 
may sue or be sued as a school corporation may be des-igna.ted either in the 
title of the action as a school corporation or in the complaint by an allegation 
of that fact, 57 Ind. 335. That case seems to be in conflict with most of the 
other cases before and after it. But see 47 Ind. 465; 60 id. 26; 61 id. 212. 

4. Property and revenues. When a village becomes incorporated the 
school town thus created becomes, as trustee by statute, the successor of the 



583] ■ POWER TO INCUR DEBT. [§§4438(^, 4438^^ 

township in the right to the possession and control of school property within 
its territory, S6 Ind. 5S2, And as soon as school trustees are appointed and 
qualified t'hev have a right to demand and receive of the township trustee 
whatever sums of money he has received by reason or on account of the school 
children residing within or transferred to the town, and he can not lawfully 
withhold it on any ground. He received and held it in trust for those children, 
64 Ind. 275. And see § 3195, r.otc 6. 

5. Dog fund. Disposition under the dog law of iSSi, R. S. iSSi, § 2651 ; 90 
Ind. 495; under present law, see §§ 4487^ and 4487/^ 

6. Suit on trustees bond. A trustee may sue his predecessor on his official 
bond, without the request of his county commissioners, both in his capacity as 
civil and school trustee, jointly, 60 Ind. 26; .or he may recover the funds of both 
townships in a suit simply as trustee of the civil township, making, however, 
the allegations sufficiently broad to cover the school funds, 61 Ind. 212. 

7. Mixing funds. The use of the school funds for the civil township, or 
vice versa, is a conversion thereof; and renders the trustee liable on his bond. 
So the use of one fund in the place of another fund is such a conversion, 60 Ind. 
26; but using a special school fund for the common school fund is not such a 
conversion as will render the trustee liable on his bond, 26 N. E. Rep. 150. 

3. Election of toivnsJnp trustee. R. S. 18S1, §§ 4735 and 5991. 

9. Corporations distinct. A civil township and the school township of the 
same territory are distinct corporations, and each must sue and be sued in its 
owm proper corporate name, and neither can sue in the name of the other, nor in 
that of the township trustee. So also a civil town and the school town are dis- 
tinct corporations, which must sue and be sued in its own corporate name, 59 
Ind. 65. 

10. Pozver of school city. A city organized under the general law for the 
incorporation of cities has no power to buy or give its promissory notes for a 
county seminary, though for school purposes in the city. That power belongs 
to the school corporation of the city, 87 Ind. 212. 

11. Divisi07i of revenues. Where money has been apportioned to a school 
township and received by the trustee thereof, some of which belongs to a school 
town afterwards organized, and he refuses to pay it over, he may be compelled 
by mandate to do so, and the school trustees of the town are the proper relators 
in such a suit, 89 Ind. 249. 

12. Property of school corporation. Real estate and buildings held by a 
school corporation for school purposes are subject to appropriation for high- 
ways as is private property, 88 Ind. 453. 

[1S75, P' 162. Approved March 11, 1875, ^^^ '^^ force August 24, 1875.] 

Sec. 4438<^. Power to incur debt. i. Whenever it becomes 
necessary for the trustee of any township in this State to incur, 
on behalf of his township, any debt or debts whose aggregate 
amount shall be in excess of the fund on hand to which such debt 
or debts are chargeable, and of the fund to be derived from the 
tax assessed against his township for the year in which such debt 
is to be incurred, such trustee shall first procure an order from the 
board of county commissioners of the county in which such town- 
ship is situated, authorizing him to contract such indebtedness. 
[R. S. 1881, §6006.] 

Sec. 4438^. Petition to incur debt. 2. Before the board of com- 
missioners shall grant such order, the township trustee shall file, 
in the auditor's office of his county, a petition, setting forth there- 
in the object for which such debt or debts are to be incurred and 
the approximate amount required, and shall make affidavit that he 



§§4438^,4439] education. [584 

has caused notice to be given of the pendency of such petition, 
by posting notices, in not less than five pubhc places in liis town- 
ship at least twenty days prior to the first day of the session of 
said board. [R. S. 1881, g 6007.] 

Sec. 4438^. Hotice of days for business. 3. Such township trus- 
tee shall designate certain days in each week or month, as may be 
required, in which he will attend to the business of his tow^nship, 
and cause notice thereof to be given to the inhabitants of such 
township; and all contracts, and auditing, and payment of claims 
shall be made only on such designated days. [R. S. 1881, § 6008.] 

Applicable to scliool tozv7isIiips. The above three sections are applicable to 
school townships; and the trustee can not, Avithout an order of the board of 
commissioners authorizing it, contract a debt for the building of a school-house 
which will make the aggregate debts chargeable to the special school fund ex- 
ceed the amount of that fund on hand and to be derived from the tax assessed 
against the township for the year in which the debt is to be incurred, and he 
may be enjoined from so doing by a tax-payer, io6 Ind, i8. A contract made 
for the construction of a school-house Avithout such an order is void, 122 Ind. 
377; 123 Ind. I, 600; 116 Ind. 130; 112 Ind. 323, 467. If the contract is for sup- 
plies which have been receive,d and retained, and which are beneficial to the town- 
ship, it is competent for the township to show that the property is worth less 
than the contract price, without offering to rescind the contract or tendering 
bask the propertj'' received, In such a case the contractor may recover from 
the township the actual cash value of the property received, 123 Ind. 1,600. See 
§ 4437, note 10. A complaint need »ot anticipate and negative the exceptions 
contained in the above sections, 83 Ind. 121. To render the trustee liable on 
his bond for indebtedness contracted in violation of these sections, he must have 
contracted in the name or in behalf of the township, 112 Ind. 323. "Fund on 
hand' means money actually in the hands of the trustee, 116 Ind. 467. Debts 
incurred in violation of these sections were legalized in 1883 (Acts 1883, p. 114; 
El. Sup. §§ 1965, 1966), 116 Ind. 467 ; but the legalizing act was repealed in 1889 
(Acts 18S9, p. 278; El. Sup, ^ 1967). 

[1876, p. 135. Approved and in force March 12, 1875.] 

Sec. 4439. School trustees in cities and towns. 5. The common 
council of each city and the board of trustees of each incorporated 
town of this State shall, at their first regular meeting in the month 
of June, elect three school trustees who shall hold their office, one, 
two, and three years respectively, as said trustees shall determine 
by lot at the time of their organization, and, annually thereafter, 
shall elect one school trustee, who shall hold his office for three 
years. Said trustees shall constitute the school board of the city 
or town ; and, before entering upon the duties of their office, shall 
take an oath faithfully to discharge the duties of the same. They 
shall meet within five days after 'their election, and organize by 
electing one of their number as president, one as secretary, and 
one as treasurer. The treasurer, before entering upon the duties 
of his office, shall execute a bond, to the acceptance of the county 
auditor, conditioned as in ordinary official bonds, with at least two 
sufficient freehold sureties, who shall not be members of said 
board, in a sum not less than double the amount of money which 
may come into his hands, within any one year, by virtue of his 



585] SCHOOL TRUSTEES. [§ 4439 

ofifice. The pre-sident and secretary shall each give bond, with 
like sureties, to be approved by the county auditor, in any sum 
not less than one-third of the treasurer's bond. All vacancies that 
may occur in said board of school trustees shall be filled by the 
common council of the city or board of trustees of the town; but 
such election to fill a vacancy shall only be for the unexpired term. 
The board of school trustees shall, each year, within five days after 
the annual election of a member, reorganize their board'-and exe- 
cute their respective bonds for the ensuing year. Said trustees 
shall receive for their services such compensation as the common 
council of the city or the board of trustees of the town may deem 
just; which compensation shall be paid from the special school 
revenue of the city or town. 

1. Lucrative office. The office of school trustee is a lucrative office, and he 
can not hold the office of road supervisor, 14 Ind. 182, nor trustee of the State 
Institute for the Deaf and Dumb, 26 N. E. Rep. 893. But a trustee of an incor- 
porated town mav be elected to the office of school trustee, 60 Ind. 288. 

2. Time of electiori. As to the time of election, this section is merely direc- 
tory ; and if omitted at the time, it may be made afterward, 74 Ind. 486. 

3. Resig7iations. A resignation of a town or city school trustee should be 
addressed to the body that elects, and is complete without formal acceptance; 
yet its withdrawal even after acceptance but with consent of the electing 
body is equivalent to a re-appointment. In case of such resignation an election 
to iill the vacancy may be held before the day set for the resignation to take 
effect, 78 Ind. 570. 

4. Residence — Compensation. If a town or city officer moves out of his 
corporation he vacates his office. A married man usually can not, so long as 
he maintains the family intimacy, keep his familj^ in one place and maintain 
his residence in another. But if a man is an actual resident of a town at the 
time of the election, there is nothing prohibiting his election and acceptance 
of the office of school trustee, although he is not at the time an actual voter. 

After a school trustee has performed labor under an ordinance fixing his 
salary, his right to compensation can not be cut off by a repeal of the ordi- 
nance, but he can recover for services rendered at the rate fixed ; yet during the 
emplovment the compensation may be modified as to the future.- — Baldiviii., 
Atty. 'Gen. 

5. Porjer as to vaccination. School trustees have the power, as a measure 
of public safety and to guard against a contagious disease, to order school chil- 
dren to be vaccinated, but they should exercise it with discretion. In some 
localities there is no danger of smallpox; in others — as a crowded city — when 
the disease has made its appearance immediate measures should be taken. — 
Baldvjin., Atty. Gen. 

6 School hoard independent. The board of town trustees can not remove 
a school trustee from office. There is no law for it. The town trustees have 
no control over the action^ of the school board, which has complete control 
over all the school concerns of the town except levying school taxes. County 
commissioners have no power to allow a town treasurer compensation out oV 
the school revenue of the town. — Baldwin, Atty. Gen. 

But the school trustees can not purchase ground or enter into contracts for 
building except with the approval of the common council or town trustees, 
§ 4491. 

7. Office lucrative. As the statute provides for the compensation of town 
school trustees, their office is a lucrative one within the meaning of the con- 
stitution, and a person can not hold it at the same time with another lucrative 
office. — Hord^ Atty. Gen. 

8. Casting- vote — Resolution. The common council of a city may elect a 
school trustee bv resolution, and iia case of a tie vote on such resolution the 



§ 4440] EDUCATION. [586 

mayor may decide by giving the casting vote. — Woollen, Atty. Gen. 121 Ind. 
206. 

9. Contest. Pending litigation to determine who is entitled to exercise the 
office of school trustee, the school trustee de facto acts; and where it appeared 
to the court that A. was in possession of the office of school trustee, it was held 
proper to compel the county auditor to recognize him as such, 23 Ind. 449. See 
27 N. E. Rep 303. 

10. Abolishment of office. The office of school trustee may be abolished or 
the term shortened by the legislature, 50 Ind. 194, 

11. Act 0/" 1873 — Organization. The above section superseded the amend- 
atory act of March 8, 1873 (Acts 1873, P- 68); 50 Ind. 194. The act of 1873 did 
not require a yearly organization of the board by annual election of president, 
secretary and treasurer, 50 Ind. 510; but the present act does. 

12. Misappliciition of funds. A trustee of a town or city who has had no 
part in the misapplication of the school funds is not liable therefor, 93 Ind. 292. 

13. Ne-M board bound by old board''s contracts. A new board of trustees is 
bound by the valid contracts of an old board, even though such contracts refer 
wholly to the year covered by the new board's administration. Thus, a contract 
made'by the board of school trustees with a school superintendent prior to the 
annual election, in June, of a new member of the board and the reorganization, 
for services to be performed after the election of such member, is valid and 
binding on the school corporation, 106 Ind. 478 (distinguishing 87 111. 255). So 
the old board can employ teachers for the ensuing year, id.; 27 N. E. Rep. 303. 
See 4444, note 6. 

14. Suit on treasurer\s bond — Penalty. The successor of the outgoing 
treasurer may sue him on his official bond, and is the proper relator to do so, 
without an order of the county commissioners, if he fails to turn over to him 
the funds in his hands. Such incoming treasurer is entitled to receive money 
onh from his predecessor in discharge of a sum due from him in his official 
capacity, and the latter can not compel him to receive notes taken upon a loan 
of school funds although the loan was made at the direction of the school trustees. 
In such an action it must be averred and proved that the term of the defendant 
ex-treasurer had expired ; but it is sufficient if it appears from the facts pleaded 
that his office term has expired, and that a successor has been chosen and has 
qualified. Such outgoing treasurer is liable to the penalty of ten per cent., pro- 
vided in ^ 4441, no Ind. 472 ; see § 4441, note 9. 

15. Suit agaiyist tovj?is. A complaint against a school town alleging the 
employment of plaintiff by the defendant to teach school and breach of the 
contract, is sufficient without alleging employment by the trustees of the town 
or that the town was incorporated, or that there was a board of trustees. In 
such a case a paragraph of a complaint founded on an account is good, 100 Ind= 
26S. 

Sec. 4440. Trustees' bonds — Vacancy. 6. The county auditor, 
in fixing the penalty and approving and accepting the bonds of 
such trustees, shall see to their sufficiency to secure the school 
revenues which may come into their hands, as well as the ordinary 
township or other revenue. In case of a vacancy in the office of 
trustee, the county auditor shall appoint a person to fill the same, 
who shall take an oath and give bond as required in the last pre- 
ceding section ; and said auditor shall report to the superintendent 
of public instruction the name and post-office address of each 
trustee. 

I. Bond does not cover borroived money. There is here a clear implication 
that the only money which a trustee can officially receive is that yielded by the 
school revenues. Money obtained by borrowing can not be said to be school 
revenue, and the penalty of the bond does net extend to such monej, 75 Ind. 



587] SCHOOL TRUSTEES. [§§ 4440a, 444 1 

2. Ti^Ic to school money. A trustee, like a county treasurer, is liable on his 
bond for all money that may come into his hands by virtue of his office, what- 
ever may become of the money. He is not a mere bailee, but the legal tech- 
nical title to the money in his hands is in himself, 36 Ind. 346. 

3. Use not co7iversion. The mere use, by the trustee, of school revenues 
of the township in his own business, is not such a conversion of the money as 
constitutes a breach of the conditions of his bond, 78 Ind. 239; 81 Ind. 109. 

4. When not entitled to interest. Title to such revenues does not vest in a 
trustee till they are actually drawn by him out of the treasury, and he is not 
entitled to interest on warrants issued against them, 66 Ind. 271. 

5. Vacancy. I believe it is considered that a person appointed to fill a 
vacancy in an office holds such office until his successor is elected and qualified. 
The supreme court seem to have so regarded the question. See 73 Ind. 175. — 
Baldxvin, Atty. Gen. See § 4440a, note. 

6. Liability on bond. See § 4439, notes 12 to 14. New bond, see § 4420/. 

[1859, p. 220. Approved and in force February 15, 1S59.] 

Sec. 4440<3;. County commissioners fill vacancy. All vacancies 
in the office of township trustee shall be filled by the board doing 
county business in term time, or by the auditor in vacation ; and 
every trustee so appointed shall continue in office until his suc- 
cessor is elected and qualified. [R. S. 1881, g 5996.] 

I. Section in force. This section is in force ; and where a vacancy occurs 
when the county commissioners are in regular (and there is no reason why the 
same is not true when they are in special) session, the county auditor can not 
till the vacancy, 113 Ind. 70. 

[1883, p. 115. Approved and in force March 6, 1883.] 

Sec. 4441. Trustees manage revenues — Reports. 7. The school 
trustees of every township, incorporated town or city, shall receive 
the special school revenue belonging thereto, and the revenue for 
tuition which may be apportioned to his township, town or city, 
by the State, for tuition or [for] the common schools, and shall 
pay out the same for the purpose for which such revenues were 
collected and appropriated. Such trustees shall keep accurate 
accounts of the receipts and expenditures of such revenues, and 
shall render to the county commissioners, annually, on the first 
Monday of August, for the school year ending on the thirty-first 
day of July, and as much oftener as they may require, a report 
thereof, in writing. Said board of commissioners shall hold a ses- 
sion on said Monday to receive said reports. They shall clearly 
and separately state : 

First. The amount of special school revenue and of school 
revenue for tuition on hand at the commencement of the year 
then ending. 

Second. The amount of each kind of revenue received within 
the year, giving the amount of tuition revenue received at each 
semi-annual apportionment thereof 

Third. The amount of each kind of revenue paid out and ex- 
pended within the year. 

Fourth. The amount of each kind of revenue on hand at the 
date of said report, to be carried to the new account, ' 



§ 444 1 J EDUCATION. ' [588 

And shall, with said report, present and file a detailed account 
current of the receipts and payments for the year, and support 
the same by proper vouchers; which report and account current 
shall each be duly verified by affidavit; and when the said county 
commissioners are satisfied that said report is full, accurate and 
right, in all respects, and that said account is just and true, they 
shall allow and pass the same; which shall have the effect to credit 
the trustee for the expenditures. A copy of said report, as passed 
and allowed by the county commissioners, shall, within ten days 
after its date, be filed by the trustee with the county superintend- 
ent of the county, and upon failure of the trustee to discharge 
any of the duties required of him relative to schools and school 
revenues, the board of county commissioners shall cause suit to 
be instituted against him, on his official bond, and in case of recov- 
ery against him, the court rendering the judgment shall assess 
upon the amount thereof ten per cent, damages, to be included in 
said judgment. [El. Sup. § 1273.] 

1. Cojiversion. The application, b}- a trustee, of tuition revenue to special 
school, road, or civil township purposes is a conversion of so much of the fund 
and a breach of his bond, 60 Ind. 26; 125 Ind. 427. The suit maj be brought 
on the relation of his successor, 47 Ind. 465 ; 60 Ind. 26; 75 Ind. 103. 

2. Liability of trustee. The trustee is absolutely liable for the loss of the 
funds, by whatever casualty. Depositing in a solvent bank, by advice of State 
and county superintendent and county board, if loss resvilt, is no defense, 61 
Ind. 212. 

3. School board ijidepende^it . The school trustees of a city or town act 
independently of the city council or board of town trustees in receiving and 
expending the school revenues, and their action can not be controlled by the 
latter, 64 Ind. 275. But see § 4491. 

4. Officer de facto. Where trustees have been duly elected, commissioned 
and qualified, giving the bonds required by law, such bonds will be -binding, 
and although the trustees may be disqualified from holding the office if the 
question were properly presented, yet funds coming into their hands Avhile 
acting will be secured by their bonds. — Woollen., Atty. Gen. 

5. Mistake iji settlement. When a township trustee fails to keep the ac- 
counts required by this section, and by reason thereof, and by reason of mislay- 
ing vouchers, he fails in his annual settlement with the county commissioners 
to claim or receive credit for a certain sum properly paid out by him, he can 
not afterward recover for the amount so paid. Si Ind. 69. 

6. Writ of mandate. Mandamus lies by a school trustee to compel deliv- 
ery by his predecessor of the records, books and papers of the office, and to 
compel ihe payment of money which the trustee is required by law to apply to 
school purposes, 78 Ind. 269. 

7. Assessment of dajuages . In a suit on the bond of a school trustee the 
court in rendering judgment upon the verdict, should add ten per cent, to the 
amount found by the jury, — Watson v. State, So Ind. 212. And the provision 
to that effect is imperative, 78 Ind. 239. 

8. Making Loans — Anticipating revenues. The powers of trustees in these 
particulars have not been generally understood, as is shown by many letters of 
inquiry received at the department. I have, therefore, tried to give a fall ex- 
position of the law on the subject, as follows: 

They can not borrozu money There is nothing in the statute from first to 
last indicating that a township trustee can rightfully obtain money from any 
other source than the school revenues. There is a plain and unmistakable pur- 
pose on the part of the legislature to confine the trustee to the funds expressly 



589] SCHOOL TRUSTEES. [§§ 4442 

provided, and not permit him to go out into the business world as a borrower. 
* * * The money is supplied to them, and they must take it as supplied, 
and not attempt to devise or create other sources of supply, 75 Ind, 368. 

Are liable for money had and received. Where money is loaned to a town- 
ship trustee for the use and benefit of the school township represented by him, 
and the school township receives the benefit of the money, it is liable therefor; 
and, though the note of the trustee attempting to bind the township for the 
loan he held void, yet the liability of the township remains as for money had 
and received, 73 Ind. 501; 75 Ind. 361. 

May excczite notes for debts. A school township, by and in the name of its 
tri^tee, mav execute a valid negotiable promissory note for any debt contracted 
for the benefit of its property ; but it is not governed by the law merchant, and 
an assignee takes it subject to all defenses, 56 Ind, 157 [26 N. E. Rep. 567]. 
The board of school trustees of an incorporated town have pov/er to execute a 
valid negotiable promissory note, by and in the name of such trustees, binding 
upon the school corporation for any debt contracted for the benefit of its prop- 
ertv, 73 Ind. 91. A note executed by a school trustee and given in payment for 
certain school maps was held to bind the school corporation, 74 Ind. 93. The 
same was true of a note given for dictionaries, 59 Ind. 534; and for school fur- 
niture, 81 Ind. 515. But school trustees have no power to bind their corpora- 
tions bv notes given for money borrowed, 75 Ind. 368. May anticipate ccrtai^i 
revenues. The only portion of the school revenues which the school trustees 
may not expend in anticipation is the school revenue for tuition belonging to 
the State and by it apportioned, 30 Ind. 17S. But this is very far from deciding 
that money may be borrowed by the trustee, 75 Ind. 368. When may issue 
bonds. A township trustee, in case of a bequest or gift exceeding five thousand 
dollars, to an unincorporated tOAvn in his township, conditioned upon the rais- 
ing of a like sum by the citizens of the township, may, upon petition of a 
majority of the legal voters thereof, issue and sell the bonds of the township to 
an amount not exceeding fifteen thousand dollars, § 4514. School bonds of 
cities and incorporated towns are issued by the common council or board of 
town trustees, but in no case by the school board, § 44S8. Conchision. The 
conclusion, from a. careful comparison of the authorities, is that school trustees 
have no power to borrow money . but they may bind their corporations by 
promissory notes for the payment in future of valid pre-existing debts, or for 
the repayment of money advanced to liquidate such debts. The act of March 1 1 , 
1875 (R. S. 1881, §§ 6006 to 6008), applies to trustees of civil., not school, town- 
ships. The indebtedness of all corporations is limited by the constitution 
(§ 22o),to,two per cent, on the value of taxable property. — Holcombe^ Suft. See 
§ 4444, note 24. 

9. Pejialties. See § 4451 and 4452. The court, in an action on the trus- 
tee's bond, assesses ten per cent, penalty, if there is a recovery, 69 Ind. 430; 
no Ind. 472. See § 4439, note 14. 

10. Right of ne-v to~vn to part of toxvnship scliool funds. Where money 
has been apportioned to a school township and received by the trustee thereof, 
and a town within such township is afterward organized before he has used 
such school fund for school purposes, he may be compelled by mandate to pav 
over the proportionate share to which the town is entitled ; and the school 
trustees of the town are the proper relators in such suit. In such a proceeding 
the validity of the town incorporation proceedings can not be attacked. 89 Ind. 
249. 

11. Sessions of board of commissioners. The sessions of the board of countv 
commissioners under this section are held for the sole purpose of receiving 
from the school trustees the reports therein provided for and taking action 
thereon, and the board has no power to transact any other business during tlie 
session, loi Ind. 167; 107 Ind, 15. 

[1865, p. 3. Approved and in force March 6, 1S65.] 

Sec. 4442, Record — Duty as to revenue. 8. The trustees shall 
keep a record of their proceedings relative to the schools, includ- 
ing all orders and allowances on account thereof; including, also. 



§§4443—4444] education. [590 

accounts of all receipts and expenditures of school revenue, dis- 
tinguishing between the special school revenue belonging to their 
township, town, or city, and the school revenue for tuition which 
belongs to the State, and by it apportioned to their township, 
town or city ; which said revenue for tuition they shall not permit 
to be expended for any other purpose, not even for that purpose 
in advance of its apportionment to their respective corporations. 

1. This restriction upon spending money in advance does not apply to 
money raised under §§ 4469 and 4470, 30 Ind. 178. 

2. T^iition revenue. From the various provisions of the law upon this sub- 
iect it is understood that no portion of this money can be lawfully applied to any 
other purpose than the payment of the wages of teachers in the common schools 
of the State. It can not be used to pay fees to the county auditor, or treasurer, 
or township trustee, or superintendent of a graded school, or a janitor, or a 
librarian, or for fuel, furniture or repairs. — Rugg-, Supt. 

3. Emhezzlement. The application. of money belonging to one fund to the 
use of another is a criminal offense, the punishment for which is imprisonment 
in the State's prison for not less than one nor more than five years, a fine of not 
less than one nor more than one thousand dollars and disfranchisement, and 
incapacity to hold any office of profit and trust, R. S. iSSi, § 1951; see 64441, 
note I ; § 4438, 7iote 7, and § 4439, note 12. 

i\. Misdemeanor. If any township trustee shall refuse to pay any just claim 
or demand against any fund of said township, when the money belonging to 
said fund is in his hands, he shall be deemed guilty of a misdemeanor, and, on 
conviction, shall be fined in any sum not less than ten dollars and not exceed- 
ing fifty dollars, R. S. 1881, § 2050. 

Sec. 4443- Ammal statement. 9. The township trustees and the 
school trustees of incorporated towns and cities shall, immediately 
after their annual settlements with the county commissioners, in 
October [August], make a full statement of all their receipts and 
expenditures, for the year preceding, relative to their schools. 

1. The time for making the annual settlement with commissioners was 
changed in 1883 from October to August, § 4441. 

2. Civil and school to7v?iships. The conclusion is inevitable that every 
township trustee must make a report within five days after the last Saturday of 
each February, and that such report must contain a statement of all the receipts 
and expenditures of all the revenues of the c/t;// township, R. S. 1881, § 5998, 
but it need not contain a report of the receipts and expenditures of the school 
revenue of the township, unless the board of county commissioners require it. 
On the first Monday after the second Tuesday ir^'October [now the first Mon- 
day of August] every township trustee must make a report of all the receipts 
and expenditures of the school revenue of his township, but not of the receipts 
and expenditures of the cz't'z7 town ship. — Bald-iuin, Atty. Gen. 

Sec. 4444. G-eneral duties. 10. The trustees shall take charge 
of the educational affairs of their respective townships, towns, and 
cities. They shall employ teachers ; establish and locate, con- 
veniently, a sufficient number of schools for the education of the 
white children therein; and build, or otherwise provide, suitable 
houses, furniture, apparatus, and other articles and educational 
appliances necessary for the thorough organization and efficient 
management of said schools. They may also establish graded 
schools, or such modifications of them as may be practicable; and 
provide for admitting into the higher departments of the graded 



591] SCHOOL TRUSTEES. [§ 4444 

school, from the primary schools of their townships, such pupils 
as are sufficiently advanced for such admission. They shall have 
the care and management of all property, real and personal, be- 
longing to their respective corporations for common school pur- 
poses, except the congressional township school lands; which lands 
shall be under the care and management of the trustee of the civil 
township to which such lands belong. 

1. Power of tr7istcc. The township trustee is clothed with almost auto- 
cratic power in all school matters. The voters and tax-paj^ers of the township 
have but little, if indeed any, voice or part in the control of the details of educa- 
tional affairs. So far as actual authority is concerned, the trustee is the corpo- 
ration, although in contemplation of law it is otherwise, Tp. 75 Ind. 374; Tp. 
73 Ind. 501. 

2. Patrofis can not designate teachers. There is no provision of the law^ 
authorizing any other person than the trustee to select a teacher. It is therefore 
held that the provision authorizing the trustee to employ teachers, also author- 
izes him to select them, and that school meetings are not empowered by the law 
to designate or employ teachers. That power was taken from them in 1873. ^^ 
some townships the trustees by courtesy permit the voters of districts to select 
their respective teachers. I doubt their right to do so. The law wisely holds 
the trustees responsible for the faithful performance of this dutv. He is bound 
to obtain the best teachers that his money will secure. He has no right to em- 
ploy a poor teacher when his money w ill control the services of a good one. 
He has certainly no right, then, to put it out of his power to thus use his best 
judgment in the selection. — Smart., Stcpt. 

3. County can not build scJiool-Iiousc. A board of count}' commissioners has 
no authority to make an appropriation of any sum out of the general fund of 
their county for the erection of a school building, 55 Ind. 334. 

4. Abaiidoncd corf^oratioji. In case a town abandons its corporation, the 
powers and duties of the board of school trustees cease, the township trustee 
succeeds thereto, and it becomes his duty to take charge of the schools without 
special notice. — Baldtvin., Atty. Gen. 

5. Trustee can not employ hitjiself. You ask me whether a township trustee 
has a right to teach school in his own township. In answer, I have to say that 
a township trustee, being the agent of the State to employ teachers for the 
public schools, is not authorized to employ liimself, and such a practice, if it 
exists, is contrary to law, and should be discontinued. — Woollen., Atty. Gen. 
See 25 Wis. 551 ; 94 111. 528 ; 14 Mich. 477. 

6. Contracts xvitJi teachers. A teacher contracts with the school towmship 
through its trustee, and although the trustee squanders the t-ov/nship funds and 
his bond is worthless, yet the township is liable to pav the teacher as specified 
in the contract. A verbal contract with a school trustee to teach a school is as 
binding as a written contract. If the trustee had employed a teacher for the 
term or school year before the patrons of that district had petitioned him to 
have the German language taught in that district, then he was justified in pay- 
ing no attention to their petition. — Baldwin^ Atty. Gen. But an outgoing board 
or trustee may employ teachers that will serve under their successors. See ^ 
4439, note 13. 

7. When contracts may be made. It would be detrimental to the public 
interests to permit retiring officers to bind their successors in the matter of em- 
ploying teachers for the succeeding year, as they might foist upon them per- 
sons that were highly objectionable, and thus destroy that harmony which 
should exist between em.ployers and employes. As there seems to be no neces- 
sity for earlier action, I think the teachers should be employed by the trustees 
who are required to manage the schools during the school \e^.T. — Woollen. 
Atty. Gen. 

8. Resignation of teacher. The relation existing between trustee and teach- 
er is based on a contract. A teacher can not resign without the consent of 
the trustee. To abandon his school without such consent is a violation of his 



§4444] EDUCATION. . [592 

contract, and gives the trustee a claim against him for any damages actually 
sustained by the school in consequence thereof. But the trustee will Avithhold 
any part of the Avages due the teacher at his peril, for unless actual damages can 
be proved the teacher may recover in a suit the amount Avithheld. — Holcomhc, 
Suft. 

9. Location of Jiouses — Title. The title to property on which a school-house 
is to be built must be in the school corporation; and by proper proceedings 
land may be condemned for school purposes, §§ 4508, 4517-4519. Trustees must 
not build outside their own jurisdiction, since the franchises of a school corpo- 
ration can not extend beyond its own territory so as to attach to land or school 
buildings outside the corporate limits, 66 Ind. 521. I do not think the laAv 
authorizes a trustee to invest township funds in a joint stock company for the 
construction of a school-house. But he may, having a deed for the land on 
which the school-house stands, build one or more rooms or stories of such house, 
permitting other parties, or a joint stock company, to build additional rooms or 
stories thereto, upon such conditions as will secure the protection and right use 
of that part owned by the township. — Hophins^ Supt. [Very doubtful. See § 
4499, noi(^ 7.] A school meeting of a district may petition the trustee for the 
removal oi ihe school-house to a more convenient location, for the erection of 
a new one, etc., but the trustee may exercise a sound discretion as to the pro- 
priety of taking such action, § 4499. 

10. Providin.ar houses, fnr7iitiire, etc. The school authorities are not bound 
to furnish educational facilities beyond those Avhich the funds devoted by laAv to 
that purpose will yield. It is not for them to burden the school township Avith 
debt by borrowing money. Their duty is fully performed and their poAver com- 
pletely exhausted when they have properly expended all money derived from 
the school revenue, 75 Ind. 375. But where money had been loaned to a tOAvn- 
ship trustee for the purpose of completing a needed and suitable school house, 
the school tOAvnship receiving the benefit of the ioanAvas held to be liable there- 
for, 73 Ind. 501; see § 4^41, note 8, and § 4437, notes 5, 9, 10, 12, 13 and 15. 

11. Poor children furnished books. The trustee can not purchase text- 
books and the like for poor and indigent pupils, 119 Ind. 213. But under cer- 
tain circumstances they may be supplied Avith them. See §§ 4496a and 4496^. 

12. Indispensable articles. Among the indispensable articles furniture 
and apparatus are a few chairs, a teacher's table, black-boards and crayons, a 
clock, a thermometer, a dictionary, a Avater-pail and cups, pointers, erasers, 
brooms and brushes. Each school should also be furnished with a terrestrial 
globe and suitable Avail maps, and there should be a closet inAvhich the movable 
property of the school m.ay be secured. — Stnart, Supt. The trustees are, under 
the laAv, the judges Avhether furniture is needed; and contracts therefor, and in 
consideration of the purchase of maps and dictionaries, Avill bind the corpora- 
tion, 74 Ind. 93; 81 id. 515; 59 id. 534. 

13. Contracts of trustees. Contracts for the benefit of school corporations, 
whether to build houses, employ teachers or purchase supplies or apparatus, 
should be made by the trustee in the name of the school, not the civil, corpora- 
tion, 69 Ind. 102; 67 id. 380. A school tOAvn is bound, as such, for the contract 
price of material furnished and labor performed by another, in the erection of a 
school building for such tOAvn, under a parol contract therefor, made Avith him 
by the school trustees of such town, but a mechanic''s lien can not be taken upon 
the building for materials furnished therefor and labor performed thereupon, 
102 Ind. 223. A suit to set aside a contract for the building of a school-house and 
to enjoin the doing of the work, on the ground o{ fraud on the part of the 
township trustee, in the making of the contract, is properly brought in the name 
of the State, for the use of the civil tOAvnship, 27 Ind. no. A contract by a school 
trustee for the improA^ement of school property, by the terms of Avhich he is to 
share in the profits is A^oid, both at common law and under the statute, 59 Ind. 
520. The penalty for such corrupt interest in contracts is a fine of from three 
hundred to one thousand dollars, and imprisonment for from tAvo to fourteen 
years. R. S. 18S1, § 2049. 

14. Graded schools. This section gives the trustees ample power to organize, 
at their discretion, such a system of free schools as the peculiar circumstances 
of their tOAvnships may require. The schools may be all of the same grade, or 



593] SCHOOL TRUSTEES. [§ 4444 

of two or three or more grades. They mav classify the children of the township 
according to acquirements. They may authorize the teaching of any branches 
of science, literature arid art which public interest and public opinion may 
require. — Larrabcc, Su;pt. The separation of pupils into different schools or 
departments, according to age and acquirements, is not an abridgment of their 
rights, 48 Ind, 360. A graded school is a school in which the pupils are placed 
in" different rooms and under different teachers, according to advancement. 
Consequently, the greater the number of rooms and teachers for any given 
school the more favorable the means for perfect grading. From this it will be 
seen that a graded school as contemplated in the above section can not exist 
%vith less than two teachers. With one the school may be classified but not 
graded. Trustees will therefore have regard to this element when thej^ put up 
buildings designed for graded schools. 2d, As to the time when a graded school 
should be established for any given towrfship, no definite directions can be 
given. There are too many local elements to admit of any special directions. 
It is, however, safe to say that whenever there are pupils in the township whose 
advancement is such that the district schools* can not furnish them instruction, 
at that moment begins the need of a township graded school, furnishing instruc- 
tion of a higher grade. The trustee must, however, be satisfied that the number 
of such pupils is sufficient to justify the establishment of such a school before 
providing the same. 3d, As to place, I would suggest that whenever practicable 
the township graded school should be established in connection with a district 
school, thus economizing in building, perhaps in teaching, also furnishing the 
means of a more thorough grading in at least one primary school in the towm- 
ship. It is suggested further that a village, if centrally located, is usually a 
favorable place for the township school. — Hoss, Supt. 

15. Pay of graded-scliool teachers. A township graded school is a com- 
mon school, as it is open alike to all the children of the township who are suffi- 
ciently qualified for admission [30 Mich. 69; 92 111. 612 ; S. C. 34 Am. Rep. 151 ; 
97 111. 375; 4 Dill, 148]. Therefore township trustees have the right to pay 
principals and teachers of graded schools for all service which they render as 
teachers in such schools, from the school revenue for tuition apportioned by 
the State. — Smarts Suft. 

16. Custody of school froj)crty. The trustee of each school district has 
charge and possession of the school-house, for although the director has the 
charge for certain purposes, he acts under the order and wath the concurrence 
of the trustee, 48 Ind. 148 ; § 4504. 

17. Care of premises. In employing teachers the trustees should bind them 
by contract to a strict care of all school property under their charge. Teachers 
can do much in this matter by direct supervision, and perhaps more by the 
inculcation of proper sentiments in the minds of their pupils. § 4504 provides 
that the director shall, under the general order and concurrence of the trustee, 
take charge of the school-house and the property belonging thereto. This may 
be made an efficient means in the preservation of property. To this end, 
however, the trustee and director should distinctly understand each other, each 
knowing definitely the portion of this work which falls to him. This can only 
be done b}'" conference, hence it is suggested that trustees occasionally call the 
directors together for consultation on this and other school matters. This done, 
each officer will understand the exact duties assigned him, and it is hoped he 
will hold himself responsible for the prompt and full discharge of the same, 
especially so in reference to the care and preservation of school property. — 
Hoss, Supt. The teacher can be required to exercise care in locking the 
school-house and out-houses, and making them as secure against injury as pos- 
sible whenever he leaves the premises, but can not be held responsible for 
damages occurring during his absence from the premises or when they are not 
under his control, as when occupied by other persons with the trustee's 
permission. — Holcomhc^ Supt. 

18. Congressional lands. When these lands are divided by a county or 
civil township line, the voters of the congressional township to which they 
belong shall designate the trustee of one of the civil townships m which they 
lie to have the care and management of them, §4330. 



§ 4445] EDUCATION. [594 

19. Borro-iving money — Rxccuting riotcs — I^iabiliiy of corporation. A 
trustee of a school corporation has no authority to borrow money. He has no 
authority to incur any indebtedness except for school purposes, and then only 
in cases contemplated by statute. He has no general authority to execute 
promissory notes; his authority in this respect is a special one, andean only be 
exercised in conformity to the statute creating the corporation. The authority 
to execute promissory notes is confined to cases where the debt which the note 
evidences is for legitimate school purposes, ■«• * -h- The cases very clearly 
establish the principle that the corporation is only liable on an implied contract, 
and not on the notes, and such a contract can not exist unless it is shown that 
the school corporation received the consideration of the notes. * * * The 
authorities all agree that an implied contract only exists in cases where the 
defendant received the consideration of the contract, and where this appears, 
and only where it appears, he is liable for the reasonable value of the property 
received, 98 Ind. 497; 26 N. E. Rep. 567. 

20 Orders 'vithout consideration void. Where the trustee of a school 
township has issued an order or certificate of indebtedness, in the name of his 
township without any consideration therefor, such order or certificate is invalid 
and void and can not be enforced against the township, nor m such cases wall 
the acts, conduct, or promises of the trustee, or his successors in office, estop 
the township from pleading the want of consideration as a sufficient defense to 
any suit against it upon such order or certificate, 90 Ind. loi. 

21. May abolish districts. After a school trustee has, on appeal, been ordered 
by the county superintendent to provide furniture for the school-house of a 
certain district, he may at once abolish the district and provide proper school 
facilities for the people thereo:' m other districts, 90 Ind. 123. 

22. Mzist control school premises. A school trustee has no authority to 
provide furniture for a room for school purposes, or to employ a teacher for 
service therein, unless such room is owned or leased by the school tov»-nship. 
90 Ind. 123. 

23. Petition for school-house — Appeal — Ma7idate. Any portion of the in- 
habitants of a township may petition the trustee for the location of an additional 
school-house, and if he refuse the prayer of the petition they may appeal to 
the county superintendent; and if he reverse the decision of the trustee it 
Avill be the duty of the latter to grant the prayer of the petition, and if he still 
refuse, he may be compelled to do so by mandate, 21 Ind. 317; § 4499, •^^i'/e.v 6 
and 7. See § 4500. 

24. Future supplies. A towmship is not liable upon a certificate issued by 
its trustee for school supplies contracted for by him for future delivery, which 
supplies, although suitable, are not needed in f he township schools, and which 
the township refuses to accept, 114 Ind. 210. See § 4441, note 8. 

25. Mechanic's hen. A mechanic's lien for work done or material furnished, 
in the erection of a public school-house, can not be acquired nor enforced, 102 
Ind. 223 (overruling 17 Ind. 225). 

26. Discontinuing schools . A trustee may discontinue a school whenever he, 
in good faith, believes its continuance not warranted, and a failure to make a record 
of his action at the time it was made is not a material matter, 119 Ind. 232. 



[1873, P-68. Approved and in force March 8, 1873.] 

Sec. 4445. Superintendent ia cities and towns. 12. The school 
trustees of incorporated towns and cities shall have power to em- 
ploy a superintendent for their schools (whose salary shall be paid 
from the special school revenue), and to prescribe his duties, and 
to direct in the discharge of the same. 






595] JOINT GRADED SCHOOLS. [§ 4446 

1. Compensation. In case a person is emplo^yed to superintend part of the 
time and teach part of the time, he can be paid for the services he renders as 
superintendent out of the special revenue, and for the services he renders as 
teacher out of the tuition revenue. If paid anything from the latter, he must 
possess a valid license. — Smarts Supt. 

2. Outgoing hoard. The outgoing board may employ a superintendent for 
the vear following, and which will be covered bv the incoming board, 106 Ind. 
47S." 

Sec. 4446. Joint graded schools. 13. The school trustees of 
two or more distinct municipal corporations for school purposes 
shall have power to establish joint graded schools, or such modifi- 
cations of them as may be practicable, and provide for admitting 
into the higher departments of their graded schools, from the 
primary schools of their corporations, such pupils as are sufficiently 
advanced for such admission. Said trustees shall have the care 
and management of such graded schools, and they shall select the 
teachers therefor. They shall have power to purchase suitable 
grounds for such graded schools and erect suitable buildings 
thereon ; and the title to all such property, acquired for such 
purposes, shall vest jointly in the corporations establishing the 
graded schools. 

1. Joint graded sctwols — Appeal. An incorporated town and township 
can unite and establish a joint graded school, and it will not be necessary for 
the town to extend its limits so as to enclose the situs of the school-house. The 
town and township authorities have no power to enter into an agreement with 
an incorporated association for school purposes, that the three shall run and 
control one school, and that such association shall have equal control over the 
school with such town and township authorities. The control of the public 
school can not be fettered by any private person. Possibly an appeal will lie 
from the decision of two township trustees refusing to build a joint graded 
school-house. In case two township trustees of different counties are petitioned 
to build such a school-house, the superintendent of that county to whom an 
appeal is first taken w^ould have jurisdiction of the case to the exclusion of the 
superintendent of the other county. It is a nev/ question, but this is my best 
judgment in the matter. — Baldtvin, Atty. Gen. 

2. Management and supervision. A joint graded school, as to its manage- 
raent and teachers, is subject to the same laws, rules, and regulations as town- 
ship graded schools [4444, notes 14, 15], except that it is under the /o/«/ manage- 
ment of the school trustees of both corporations. But the teachers should 
attend the institutes of the county and township in which the school is situated, 
and should be under the supervision of the superintendeHt of that county. — 
Smarts Supt. 

3. Proportio7ial contributions. While the section that provides for the 
establishment of joint graded schools by two or more distinct corporations is 
silent as to the proportion in which each shall contribute to the expense, yet I 
am of opinion that their contributions should be in proportion to the number 
of pupils they will each send to the new school. Such is the rule in the case 
of joint district schools [§ 4513], and I think the same reasons apply to joint 
schools of all kinds. — Holconibe, Supt. 

4. Under this section trustees of two or more school townships may organ- 
ize a joint graded school^ and purchase suitable real estate therefor; and such 
trustees are the sole judges of the right to purchase property of this character. 
They may give the townships' notes therefor; and, in a suit on such notes, no 
inquiry can be made, in the absence of fraud between the seller and the trustees, 
as to whether such ground was suitable or proper, 124 Ind. 72. 



§§ 4447 — 4449] education. [596 

5. The trustees act as individual trustees, and do not as a unit represent 
their respective school corporations. A majority of the whole board of trustees, 
whether such majority come from one corporation entirely, or from the differ- 
ent corporations interested, have the power to transact any and all business, 
including the employment of teachers, relating to such joint graded school, 
125 Ind 557; 26 N. E. Rep. 872. 

[1877, p. 18. Approved and in force March 3, 1877.] 

Sec. 4447. Surplus special school revenue in cities and towns, i. 

The board of school trustees of any city or incorporated town in 
this State is hereby authorized and empowered to pay oves to 
the common council or board of trustees of such city or to^\^l 
any surplus special school revenue in the hands of such school 
trustees, not necessary to meet current expenses — such excess of 
the revenue, aforesaid, to be applied to the payment of the in- 
terest or principal, or both, of any indebtedness incurred under the 
provisions of the act of March 8, 1873, authorizing cities and in- 
corporated towns to negotiate and sell bonds to procure means to 
erect and complete unfinished school buildings, and to purchase 
any ground and building for school purposes, and to pay debts 
contracted for the erection, completion, and purchase of buildings 
and grounds. [§§ 4488 to 4490.] 
See § 4492. 

Sec. 4448. Things legalized. 2. Where the excess of special 
school revenue not necessary to meet the current demand upon 
such revenue shall have been, prior to the passage of this act, 
loaned, paid over, or applied, as provided in the preceding sec- 
tion, such loan, payment, or application of such moneys, is hereby 
legalized and made valid, as fully and completely as if this act 
had been in full force and effect at the time such transaction took 
place. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4449. Teacher's reports. 20. To enable the trustees to 
make reports which are required of them by this act, the teacher 
of each school, whether in township, town, or city, shall, at the 
expiration of the term of the school for which such teacher shall 
have been employed, furnish a complete report to the proper 
trustee, verified by affidavit, showing the^ length of the school 
term, in days ; the number of teachers employed, male and female, 
and their daily compensation ; the number of pupils admitted dur- 
ing the term, distinguishing between males and females, and 
between the ages of six and twenty-one years; the average at- 
tendance ; books used and branches taught, and the number of 
pupils engaged in the study of each branch. Until such report 
shall have been so filed, such trustee shall not pay more than 
seventy-five per centum of the wages of such teacher, for his or 
her services. 

I. The report final. The law requires a teacher to make a report to the 
trustee at the end of the term for which said teacher shall have been employed- 






597] trustees' reports. [§445o 

I think the contemplated report is a final report. It may be at the end of two, 
three or four months, as the case maj^ be, or at the end of the year. I think 
that a report made in the middle of a term would not be a final report as con- 
templated by the law, unless the teacher at that time severed his connection 
with the schools. — Smart, Supt. 

2. Teachers excused, ivhen. If the school authorities fail to furnish a build- 
ing in which to teach the school, or refuse to furnish a school to be taught, or 
wrongfully discharge the teacher, such teacher is excused from making a report, 
74 Ind. 127. 

3. WithJioIdrno- zvages. The provision on this subject is designed to give 
the trustee a means of securing the final report from the teacher. It will gen- 
erally, be sufficient for this purpose to withhold a part or all of the wages of 
the last month only before the report becomes due. Any other practice would 
inflict on teachers a hardship which I am persuaded was not intended by the 
legislature. — Holcomhe^ Suft. 

4. Report obligatory. Until the teacher has made a report, he can collect 
only seventy-five per cent, of his wages, 107 Ind. 351. 

[1883, p. iiS. Approved and in force March 6, 1883.] 

Sec. 4450. Trustees' report. 21. The trustees of each township, 
town, or city shall, annually, on the first Monday of August, make 
their report for the school year ending on the 31st day of July 
and furnish to the county superintendent the statistical informa- 
tion obtained from teachers of the schools of their respective 
townships, towns, or cities, and embody in a tabular form the fol- 
lowing additional items : The number of districts ; schools taught, - 
and their grades ; teachers, males and females ; average compen- 
sation of each grade; balance of tuition revenue on hand at the 
commencement of the current year; amount received during the 
year from the county treasurer, and amount expended within the 
year for tuition ; and balance on hand ; length of school taught 
within the year, in days; school-houses erected during the year; 
the cost of the same; the number and kind before erected, and 
the estimated value thereof, and of all other school property; 
number of volumes in the library and the number taken out dur- 
ing the year ending the 31st day of July; also the number of 
volumes added thereto; assessment on each one hundred dollars 
of taxable property, and on each poll of special tax for school- 
house erection, and amount of such levy; balance of special 
school revenue on hand at the commencement of the current 
year; amount received during the year from the county treasurer; 
the amount of said revenue expended during the year, and bal- 
ance on hand; the number of acres of unsold congressional school 
lands, the value thereof, and the income therefrom ; together with 
such other information as may be called for by the county super- 
intendent and the superintendent of public instruction. [El. Sup. 
§ 1273.] 

I. Ame7id7nents. The amendment of this section, and of §§ 4431 and 4441, 
is due to the recommendation of State Supt. John M. Bloss, and is a very bene- 
ficial measure. Heretofore trustees made their annual reports of receipts and 
expenditures of school revenues to the county superintendent on September 
ist, and to the county commissioners early in October (§ 4441), in each case for 
the year then ending. The result was great confusion between the two reports, 



§§4451—4455] ' education. [598 

rendering accuracy almost impossible. The amendment of the sections gives a 
standard year for all financial and statistical reports of school trustees. The 
state superintendent's report for 1882 (John M. Bloss) contains, on pages 123- 
133, an instructive accocnt of this matter. 
See § 4431, 4441 and 4451. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4451. Failure to report. 22. On failure of an}^ trustee to 
make either the statistical report required by the last preceding 
section, or the report of the enumeration required by the six- 
teenth section of this act [§ 4473], or the report of finances re- 
quired by the seventh section of this act [§ 4441], to the county 
superintendent, at the time, and in the manner specified for each 
of said reports, the county superintendent to whom such reports 
are due shall, within one week of the time the next semi-annual 
apportionment is to be made by the auditor of the county, notify 
said auditor, in writing, of any such failure ; and the auditor shall 
diminish the apportionment of said township, town or city by the 
sum of twenty-five dollars, and withhold from the delinquent trus- 
tee the warrant for the money apportioned to his township, town 
or city, until such delinquent report is duly made and filed. For 
said twenty-five dollars, and any additional damages which the 
township, town or city may sustain, by reason of stopping said 
money, such trustee shall be liable on his bond, for which the 
county commissioners may sue. 

Sec. 4452. Neglecting Dnties. 23. If a trustee shall fail to 
discharge any of the duties of his office relative to the schools, 
any person may maintain an action against him for every such 
offense, in the name of the State of Indiana, and may recover, for 
the use of the common school fund, any sum not exceeding ten 
dollars ; which sum, when collected, shall be paid into the county 
treasury, and added by the county auditor to said fund, and re- 
ported accordingly. 

Sec. 4453. Failing to serve. 24. Any person elected or ap- 
pointed such trustee, who shall fail to qualify and serve as such, 
shall pay the sum of five dollars, to be recovered as specified in 
the preceding section for the use therein named, and in like man- 
ner added to said fund, unless such person shall have previously 
served as such trustee. 

Sec, 4454. Trustee's accounts. 141. The books, papers, and 
accounts of any trustee, relative to schools, shall at all times be 
subject to the inspection of the county superintendent, the county 
auditor, and the board of county commissioners of the proper 
county. 

Sec. 4455. Examination of trustee and his books. 142. For the 
purpose of such inspection, said county superintendent, auditor, 
and board of county commissioners may, by subpoena, summon 



599] SCHOOL IN LARGE CITIES. [§§ 4456 4458 

before them any trustee, and require the production of such books, 
papers and accounts, three days' notice of the time to appear and 
produce them being given. 

Sec. 4456. Correction of accounts — Eemoval. 143. If any such 
books and accounts have been imperfectly kept, said board of 
commissioners may correct them, and, if fraud appear, shall re- 
move the person guilty thereof. 

Onlj the board of commissioners can correct the trustee's books. The 
county superintendent has no power to make or order corrections on his own 
responsibility, but may direct and assist trustees in keeping their accounts and 
securing accuracy, and for such labor he is entitled to compensation, — Hol- 
co7)ibe^ Supt. 

[1S71, p. 20. Approved and in force March 3, 1871.] 

Sec. 4457. School system in large cities, i. In all cities of 
this State of thirty thousand or more inhabitants according to the 
United States census for the year eighteen hundred and seventy, 
there shall be elected, by the quaHfied electors of each school dis- 
trict of such city, one school commissioner, to serve as a member 
of the board of school commissioners of such city. The first 
regular election for school commissioners, under this act, shall be 
held on the second Saturday in June, in the year eighteen hundred 
and seventy-one, at the places to be fixed on for holding such 
election in the school districts of such city by the common coun- 
cil. All elections for school commissioners shall be held in the 
same manner as elections are nov/ held, and shall be governed by 
the same laws that now govern general and municipal elections. 
The persons declared elected shall have issued to them, by the city 
clerk, certificates of election; and they shall, within ten days 
thereafter, take an oath of office, and file the same with the city 
clerk. All regular elections for school commissioners shall, there- 
after, be held annually, on the second Saturday in June. 

Sec. 4458. School districts. 2. It is hereby made the duty of 
the common council of any such city, on or before the first Mon- 
day in May, 1871, by ordinance, to district the city into as many 
school districts as there are wards, and to define the boundaries of 
each district, and such boundaries may be the present ward bound- 
aries, or otherwise, as the common council may determine. Such 
school districts shall, however, be subject to change by the board 
of school commissioners at any time after its organization ; and in 
case the number of districts is increased, each additional district 
shall be entitled to elect one school commissioner for such district 
at the annual election for school commissioners. The common 
council shall, at the time such ordinance is adopted creating such 
districts, order an election to be held in each of such districts, for 
school commissioners thereof, on the second Saturday in June 
following; and shall direct the city clerk to give ten days' notice 
thereof in some daily newspaper of such city. 



§§ 4459' 44^0] ■ EDUCATION. [600 

Sec. 4459. Organization — Term — Vacancies. 3. On the first 
Monday in July following the first election of school commission- 
ers herein provided for, such school commissicfners shall assemble 
at the office of the board of school trustees of such city, and pro- 
ceed to organize the board of school commissioners of such city, 
by electing one of their number as a president, one of their num- 
ber as a treasurer, and one of their number as a secretary; each 
of which of^cers shall serve for one year and until his successor is 
elected and qualified. The members of such board of school 
commissioners shall then determine, by lot, Avhich three of their 
number shall hold office for three years, and which three shall 
hold office for two years ; and, after having so determined, the 
president of the board shall issue to the persons so determined, 
certificates entitling them to hold office for the terms respectively 
allotted ; and the remaining members shall receive, from the pres- 
ident of the board, certificates showing that each is entitled to hold 
ofidce for one year; and all persons elected as school commission- 
ers at the annual elections' thereafter shall be entitled to hold office 
for three years each. All vacancies occurring at any time prior 
to the annual election shall be filled by a ballot vote of a majority 
of the members of such board; and the persons so elected to fill 
such vacancies shall serve until the next annual election for school 
commissioners. All persons elected at any regular annual elec- 
tion, or by the board to fill any vacancy, shall serve until their 
successors are elected and qualified. It is hereby made the duty 
of the board of school trustees in office at the time of the organi- 
zation of the board of school commissioners, to at once turn over 
to the board of school commissioners all books and papers per- 
taining to their trust, and to place in possession of the board of 
school commissioners all moneys, title papers, and property be- 
longing to the school trustees of common schools of such city; 
and such board of school trustees shall thereafter cease to perform 
any and all duties whatever connected with the schools of such 
city. 

Sec, 4460. Duties and powers. 4. Such board* of school com- 
missioners is hereby authorized — 

First. To district the city for the purpose of electing school 
commissioners therein, and also to subdivide the city for general 
school purposes. 

Second. To levy all taxes for the support of the schools within 
such city, including such taxes as may be required for paying 
teachers, in addition to the taxes now authorized to be levied by 
the general assembly of this State by the general laws thereof: 
Provided, No such tax levy, in any one year, shall exceed the 
sum of twenty-five cents on each one hundred dollars of the tax- 
able property, as assessed for city taxes by the city assessor, for 
purchasing grounds, building school-houses, and furnishing sup- 
plies for such buildings ; or twenty-five cents on each one hundred 



6oi] SCHOOL IN LARGE CITIES. [§4460 

dollars of such taxable property, for the purpose of paying 
teachers. 

TJiird. To levy a tax, each year, of not exceeding one-fifth of' 
one mill on each dollar of taxable property assessed for city taxes 
by the city assessor, for the support of free libraries in connection 
with the common schools of such city ; and to disburse any and 
all revenue raised by such tax levy in the purchase of books for, 
and in the fitting up of suitable rooms for, such libraries, and for 
salaries to librarians; also to make and enforce such regulations 
as they may deem necessary for the taking out from and returning 
to, and for the proper care of all books belonging to, such libra- 
ries, and to prescribe penalties for the violation of such regulations. 

Fowih. To examine, either by a committee of such board of 
school commissioners or by an officer of such board, selected for 
that purpose, all teachers applying for positions in the schools of 
the city; and to license such as may be qualified — such license to 
be limited to the city in which the same is granted. 

Fifth. To purchase grounds, construct school buildings, pur- 
chase supplies, employ and pay teachers, appoint superintendents, 
and disburse, through the treasurer of the board of school com- 
missioners, moneys for all school and library expenses. 

Sixth. To require the treasurer of the board of school com- 
missioners to give bond in such sum, and with such surety as the 
board miay determine, for the faithful discharge of his duties, and 
for the safe-keeping and faithful accounting for all moneys that 
may come into his hands as such treasurer. 

Seventh. To establish and enforce regulations for the grading 
of and course of instruction in the schools of the city, and for the 
government and discipline of such schools. 

Eighth. To prepare, issue, and sell bonds to secure loans, not 
exceeding in the aggregate the sum of one hundred thousand 'dol- 
lars, in anticipation of the revenue, for building school-houses, to 
bear such rate of interest, not exceeding ten per cent, per annum, 
and payable at such time, within five years from date, as the board 
may determine; and the money obtained as a loan on any such 
bonds shall be disbursed by order of such board, in payment of 
expenses incurred in building school-houses: Provided, That until 
all the bonds of any one issue shall have been redeemed, such 
board shall not be authorized to make another issue ; nor shall any 
such bonds be sold at a less rate than ninety-five cents on the 
dollar. 

1. Can not levy poll tax. The board of school commissioners has no power 
to levy a poll tax for the support of the common schools of the citv, or for a 
special fund for the support of such schools, 84 Ind. 67. 

2. School-houses — Promissory notes. Under the fifth subdivision the 
school commissioners may contract for the erection and completion of school- 
houses, and they are authorized thereby to agree to pay partly in cash and 
partly on time, and to make and deliver their promissory notes for the deferred 
payments, which are valid obligations and binding upon the school corpora- 
tion, notwithstanding the fact that there may be at the time outstanding bonds 



§§44^1 — 44^4] EDUCATION. [602 

to the amount of $100,000, issued and sold under the eighth clause of the above 
section, to secure loans in anticipation of the revenue, for building school- 
houses, and that such money had been disbursed for that purpose, 102 Ind. 223. 

3. Poxvers mider fiftli clause. The powers conferred under the fifth clause 
are limited only by the educational wants of the school corporation under the 
board's control, in the exercise of a sound and reasonable discretion, 102 Ind. 
223. 

4. Eighth clause. This clause was not intended to be and is not a limita- 
tion upon the general powers conferred upon the board of school commission- 
ers bj the lil~th clause of this section. It confers additional and extraordinary 
powers not conferred upon school corporations generally, and the proviso 
therein contained is a limitation only upon the board's exercise of such addi- 
tional and extraordinary powers, 102 Ind. 223. 

5. Promissory notes. Promissory notes executed by such board, in settle- 
ment of its just debts fairly contracted for the legitimate purposes of the school 
corporation, do not come within the purview of the eighth clause, or of the 
proviso thereof, and are valid, 102 Ind. 223. 

6. Levy of taxes. See Acts 1885, p. 13, § 9. 

Sec. 4461. Tax — Collection and payment. 5. All levies of taxes 
made by order of the board of school commissioners shall be cer- 
tified by its president and secretary to the city clerk, who shall 
cause the same to be placed on the tax duplicate against all prop- 
erty assessed for city taxes ; and the city treasurer shall collect the 
same as city taxes are collected, and shall, once in each month, 
pay over all such taxes so collected to the treasurer of the board 
of school commissioners of such city. All taxes hereafter col- 
lected by the county treasurer for school purposes on levies here- 
after made, and all moneys that may be hereafter distributed as 
part of the common school fund by county officers, to which the 
common schools of such city shall be entitled, shall be paid over 
by the county treasurer to the treasurer of the board of school 
commissioners ; and all taxes hereafter collected by the city treas- 
urer on levies heretofore made for school purposes, shall be paid 
over by such treasurer, once in each month, to the treasurer of the 
board of school commissioners of such city. 

Sec. 4462. Sessions — Eecord — ^0 pay. 6. The said board of 
school commissioners shall hold its sessions at such times as it 
may determine, and shall keep a record of all its proceedings. 
The members of such board shall serve without any compensation 
whatever. 

Sec. 4463. General school law in force. 8. All parts of the gen- 
eral school laws of this State, not inconsistent herewith, and which 
may be appHcable to the general system of common schools in 
such city, herein provided for, shall be in full force and effect in 
such city. 

[iS77> P- 123. Approved and in force March 3, 1877.] 

Sec. 4464. Temporary loans, i. The board of school commission- 
ers of any city embraced within the provisions of sections 4457 



6o3] 



SCHOOL BOOKS. 



[§ 4464^ 



to 4463, may, whenever the funds for the support of the common 
schools in such city throughout the regular school year shall be 
insufficient or exhausted, make temporary loans for the support 
of such schools during such time, and until the receipt of the 
school revenue of the current year; but no more than is sufficient 
for such purpose, nor the amount of such revenue for the current 
year, shall be borrowed at any one time, and no further loan shall 
be made until such temporary loan shall be paid. 



ARTICLE 2^— SCHOOL BOOKS. 



4464(2 . 

4464^. 

4464^- 
4464c/. 
4464^. 
44»4/- 
446-1^- 

4464^'. 
4464.;- 

4464/t. 

4464/. 
4464 w. 
4464«. 
44640. 



State board of education selects 4464^'. 

books. 4464?. 

Bids to supply school books. 4464^. 

Opening- bids — Prices. 44645. 

State may publish school books, 4464/. 

State not liable on contracts, 4464?^. 

Proclamation by g-overnor, 4464V. 

Furnishing books. 

Trustee's reports — ^loneys m his 4464TC. 
hands. 

Failure to report — Liability on bond. 4464.V. 

Special bond of county superintend- 
ents. 4464_>'. 

Reports to contractor — Liability of 4464^. 
contractor. 

Excessive charges for books-Penalty. 4464(70:. 

Embezzlement. 4464^^. 

Appropriations — Repeal of laws. 4464CC. 

Bids for physiolog-ies, grammars and 
histories. 



Board to order bool<s. 

Receipt of books — Report of sales. 

Books for poor. 

Reports when books are paid for. 

Appropriation 

Failure of trustee to report, penalty. 

Special bond of county superintend- 
ent. 

Report of county superintendent — 
Penalty for failure to report. 

Embezzlement of county superintend- 
ent. 

Books to be uniform. 

Shipment of books — Receipt by 
trustee. 

Labels for books. 

Distribution of this act. 

This act supplemental to act of 1889. 



[18S9, p. 74. Became a law by lapse of time without Governor's approval, 

March 2, 1889.] 

Sec. 4464^. State board of education selects books, i. The 
state board of education shall constitute a board of commissioners 
for the purpose of making a selection, or procuring the compila- 
tion for use in the common schools of the State of Indiana, of a 
series of text-books in the following branches of study, namely: 
Spelling, reading, arithmetic, geography, English grammar, phys- 
iology, history of the United States, and a graded series of writ- 
ing-books. The matter contained in the readers shall consist of 
lessons commencing with the simplest expression of the language, 
and by a regular gradation, advancing to and including the high- 
est styles of composition both in poetry and prose : Provided, That 
none of said text-books shall contain anything of a partisan or 
sectarian character: A7td, p7vvided further, That the foregoing 
books shall be at least equal in size and quality as to matter, 
material, style of binding and mechanical execution, to the follow- 
ing text-books now in general use, namely: The speller to McGuf- 
fey's Spelling-book, the reader to- Appleton's Readers, the arith- 
metic to Ray's New Arithmetic Series, the geographies to the 
Eclectic Series of Geographies, the grammar toT'^'ii'vey's Gram- 
mar, the physiology to Dalton's Physiology, the history of the 
United States to Thalheimer's History of the United States, and 



§ 44^4*^] EDUCATION. [604 

the writing-books equal to the Eclectic Copy-books. [El. Sup. 
§ 1289]. 

This section and those following to § 44-H'^ ^^^ greatlj modined and many 
of their provisions repealed by the act of 1S91, being §§ 4464c to 4464CC. 

Sec. 4464(^. Bids to supply school books. 2. The said board of 
commissioners shall, immediately upon the taking effect of this 
act, advertise for twenty-one consecutive days in two daily papers 
published in this State, having the largest circulation, and in one 
newspaper of general circulation in the cities of New York, Phila- 
delphia, Cincinnati, Chicago and St. Louis, that at a time and 
place to be fixed by said notice, and not later than six months 
after the first publication thereof, said board will receive sealed 
proposals on the following: 

First. From publishers of school text-books, for furnishing 
books to the school trustees of the State of Indiana for use in the 
common schools of this State, as provided in this act, for a term of 
five years, stating specifically in such bid the price at which each 
book will be furnished, and accompanying such bid with specimen 
copies of each and all books proposed to be furnished in such 
bid. 

Second. From authors of school text-books, who have manu- 
scripts of books not published, for prices at which they will sell 
their manuscript, together with the copyright of such books for 
use in the public schools of the State of Indiana. 

Third, From persons who are willing to undertake the com- 
pilation of a book or books, or a series of books, as provided for in 
section one (i) of this act, the price at which they are willing to 
undertake such compilation of any or all of such books, to the 
acceptance and satisfaction of the said board of commissioners: 
Provided^ That any and all bids by publishers, herein provided for, 
must be accompanied by a bond in the penal sum of fifty thousand 
dollars, with resident freehold surety, to the acceptance and satis- 
faction of the governor of this State, conditioned that if any con- 
tract be awarded to any bidder hereunder, such bidder will enter 
into a contract to perform the conditions of his bid to the accept- 
ance and satisfaction of said board: And provided fiirtJier, That 
no bid shall be considered unless the same be accompanied by the 
affidavit of the bidder that he is in nowise, directly or indirectly, 
connected with any other publisher or firm who is now bidding 
for books submitted to such board, nor has any pecuniary interest 
in any other publisher or firm bidding at the same time, and that 
he is not a party to any compact, syndicate or other scheme where- 
by the benefits of competition are denied to the people of this 
State : And be it further provided, That if any competent author or 
authors shall compile any one or more books of the first order of 
excellence, and shall offer the same as a free gift to the people of 
this State, together with the copyright of the same and the right 
to manufacture and sell such works in the State of Indiana for use 



605] SCHOOL BOOKS. [§§ 4464c, 4464^ 

in the public schools, it shall be the duty of such board of com- 
missioners to pay no money for any manuscript or copyright for 
such book or books on the subject treated of in the manuscript so 
donated; and such board shall have the right to reject any and all 
bids, and at their option such board shall have the right to reject 
any bid as to a part cf such books, and to accept the same as to 
the residue thereof. [El. Sup. § 1290.] 

Constitutional. This and the following sections on school books are consti- 
tutional, and are not within the constitutional provision directed against mo- 
nopolies, 1-2 Ind. 462. 

Sec. 4464r. Opening" bids — Prices. 3. It shall be the duty of 
such board to meet at the time and place mentioned in such notice, 
and open and examine all sealed proposals received pursuant to 
the notice provided for in section two (2) of this act, and it shall 
be the further duty of such board to make a full, complete and 
thorough investigation of all such bids or proposals, and to ascer- 
tain under which of said proposals or propositions the school 
books could be furnished to the people of this State for use in the 
common schools at the lowest price, taking into consideration the 
size and quality as to matter, material, style of binding and me- 
chanical execution of such books: Provided, always, That such 
board shall not, in any case, contract with any author, publisher 
or publishers, for the furnishing of any book, manuscript, copy- 
right or books which shall be sold to patrons for use in the public 
schools of this State at a price above or in excess of the following, 
which prices shall include all cost and charges for the transporta- 
tion and delivery to the several county school superintendents in 
this State, namely: For a spelling-book, ten (10) cents; for a first 
reader, ten (10) cents; for a second reader, fifteen (15) cents; for 
a third reader, twenty-five (25) cents; for a fourth reader, thirty 
(30) cents; for a fifth reader, forty (40) cents; for an arithmetic, 
intermediate, thirty-five (35) cents; for an arithmetic, complete, 
forty-five (45) cents; for a geography, elementary, thirty (30) 
cents; for a geography, complete, seventy-five (75) cents; for an 
English grammar, elementary, twenty-five (25) cents; for an 
English grammar, complete, forty (40) cents ; for a physiology, 
thirty-five (35) cents; for a history of the United States, fifty 
(50) cents; for copy books, each, five (5) cents. [El. Sup. § 
1291.] 

Sec. 4464^. State may publish school books. 4. If, upon the 
examination of such proposals, it shall be the opinion of such 
board of commissioners that such books can be furnished cheaper 
to the patrons for use in the common schools in the State by pro- 
curing and causing to be published the manuscript of any or all 
of such books, it shall be their duty to procure such manuscript 
and to advertise for sealed proposals for publishing the same, in 
like manner as hereinbefore provided, and under the same condi- 
tions and restrictions. And such contract may be let for the pub- 



§§ 44^4^ '4464<b'] EDUCATION. [606 

lication of all of such books, or for any one or more of such books 
separately; and it shall be the further duty of such board of com- 
missioners to provide, in the contract for the publication of any 
such manuscript, for the payment by the publisher of the com- 
pensation agreed upon between such board and the author or 
owner of any such manuscript for such manuscript, together with 
the cost or expense of copyrighting the same. [El. Sup. § 1292.] 

Sec. 4464^. State not liable on contracts. 5. It shall be a part 
of the terms and conditions of every contract made in pursuance 
of this act that the State of Indiana shall not be liable to any con- 
tractor hereunder for any sum whatever; but that all such con- 
tractors shall receive their pay and compensation solely and ex- 
clusively from the proceeds of the sale of the books, as provided 
for in this act. [El. Sup. § 1293.] 

Sec. 4464/. Proclamation by governor. 6. As soon as such board 
shall have entered into any contract for the furnishing of books 
for use in the public schools of this State, pursuant to the provis- 
ions of this act, it shall be the duty of the governor to issue his 
proclamation announcing such fact to the people of this State. 
[El. Sup. § 1294.] 

Sec. 4464^. Furnishing books. 7. When such proclamation shall 
have been duly issued, it shall be the duty of the school trustees of 
each and every school corporation in this State, within thirty days 
thereafter, and at such other times as books may be needed for 
use in the public schools of their respective corporations, to certify 
to the county superintendent of their respective counties the num- 
ber of school text-books provided for in such contract required by 
the children for use in the schools of their several school corpora- 
tions. Such county superintendent shall forthwith make such 
requisition for books as the schools in the said several counties 
may require upon the state superintendent of public instruction, 
and that said state superintendent of public instruction shall imme- 
diately thereafter make a requisition for said books upon the con- 
tractor, who shall within ninety days ship the books so ordered 
directly to the county school superintendents of the several 
counties of this State. Upon the receipt of such books it shall be 
the duty of such county school superintendents to immediately 
notify all the school trustees of the school corporations as shown 
by the last school enumeration of their counties of the receipt of 
such books. It shall then be the duty of such school trustees to 
immediately procure and take charge and custody of all the books 
assigned to their several school corporations, receipting therefor to 
the said county school superintendent; and upon the receipt of 
such books by said school trustees they shall furnish them on 
demand to the school patrons or school children of their respective 
corporations at the price fixed therefor by the contract entered 



607] SCHOOL BOOKS. [§§ 4464//, 4464^' 

into between said board of commissioners and said contractor; 
and it shall be the duty of such school officers to sell such books 
for cash only ; and if they shall sell or dispose of any books other 
than for the cash price thereof they shall be held personally liable, 
and liable upon their official bond for the price of such book or 
books : Provided, That any patron or pupil of any school or schools 
other than the public schools, and also any child between the 
ages of six and twenty-one years of age, or the parent, guardian 
or teacher of such child, shall have the right to purchase and 
receive the books, and at the prices herein named, by payment of 
the cash price thereof to the school superintendent of any county 
in this State, and it is hereby made his duty to make requisition 
upon the contractor for any and all books so ordered and paid for 
by any such person or persons : And provided further, That noth- 
ing in this act shall operate to prevent the state board of educa- 
tion, boards of school trustees or boards of school commissioners 
from devising means and making arrangements for the sale, ex- 
change or other disposition of such books as may be owned by 
the pupils of schools under their charge at the time of the adoption 
of books under the provisions of this act. [El. Sup. § 1295.] 

Sec. 4464/^. Trustee's report — Moneys in his hands. 8. At the 
expiration of three months after the receipt of such books by the 
county superintendent, and every three months thereafter, it shall 
be the duty of each school trustee receiving and chargeable with 
books under the provisions of this act, to make a full and com- 
plete report to the county superintendent of the number of 
books sold and the amount of money received therefor, and the 
number of* books on hand ; and at the time of making such report 
he shall pay over to the county superintendent all moneys re- 
ceived by him or with which he is chargeable, from the sales of 
books in his hands ; which report shall be duly verified by the oath 
of the party making it. [El. Sup. § 1296.] 

1. See § 4464?^. 

2. Mandatory. The trustee is bound to make the report enjoined by this 
section, and is bound to introduce the books supplied under this law, 122 Ind. 
464. 

Sec. 44642". Failure to report — Liability on bond. 9. If, at the 

expiration of ten days from the time required by this act for the 
making of such report of any school superintendent chargeable 
with books under this act, any such officer shall have failed, neg- 
lected or refused to make such report, or turn over any moneys 
with which he is chargeable, it shall be the duty of the county 
school superintendent, within fifteen days, to enter suit upon his 
official bond for an accounting and recovery of any moneys due 
from him on account of such books with which he is chargeable ; 
and all judgments recovered upon such bonds shall include a rea- 
sonable attorney's fee for the attorney prosecuting such suit ; and 
such judgment shall be without relief from valuation or appraise- 



§§ 44647'' 44^4^^] EDUCATION. [608 

ment laws, and shall be without stay of execution. [El. Sup. 
§ 1297.] 

See § 4464?^. 

Sec. 4464/', Special bond of county superintendents. 10. It shall 
be the duty of the several county school superintendents of this 
State, within thirty days from the issuing of the proclamation by 
the governor, as hereinbefore provided for, and of every county 
school superintendent hereafter elected, before he enters upon the 
discharge of his official duties, to enter into a special bond, with 
at least two freehold sureties of such county, payable to the State 
of Indiana, conditioned that they will faithfully and honestly per- 
form all the duties required of them by this act, and account for 
and pay over all moneys that may come into their hands, pursuant 
to the provisions of this act, in a penal sum which shall be equal 
in amount to one hundred dollars for every one thousand inhabit- 
ants of their respective counties as shown by the last census im- 
mediately preceding the giving of such bond, to be approved by 
the board of commissioners of their respective counties; and upon 
the failure of any county school superintendent to give such bond, 
his office shall become immediately vacant, and the board of com- 
missioners of his county shall immediately appoint some compe- 
tent and suitable person to fill such vacancy for the unexpired 
term of his office. [El. Sup. § 1298.] 

1. See § 44641'. 

2. Bond, Dutj^ to file, and failure to do so, 124 Ind. 145, 554. See § 4424, 
note 21. 

Sec. 4464^. Eeports to contractor— Liability of contractor, ii. 

It shall be the duty of each county school superintendent in this 
State, within ten days after the quarterly reports of the school 
trustees, as hereinbefore provided for, to make a full, true, com- 
plete and detailed report to the contractor of all books sold by the 
several school trustees of his county- and of the number of books 
in the hands of the trustees of each school corporation, which 
report shall be accompanied by all cash received by him from the 
school officers from sales of books by them sold, and which report 
shall be duly verified by him, and a duplicate thereof shall be filed 
in the office of the auditor of his county. Upon the failure of 
any county school superintendent, to make the report and to 
transmit the cash, as required by this section, a right of action 
shall immediately accrue to the contractor against the said school 
superintendent and the sureties upon the bond provided for in this 
act, for an accounting and for the recovery of any moneys re- 
ceived and not transmitted by him, and for any damages which 
may have resulted from his neglect or failure to comply with pro- 
visions of this act, and any judgment upon any such bond shall 
include a reasonable fee for the attorney prosecuting such suit, 
and such judgment shall be without relief from valuation and 



609] SCHOOL BOOKS. [g§ 4464/ — 4464^ 

appraisement laws and shall be without stay of execution. [El. 
Sup. § 1299.] 
See § 44647-. 

Sec. 4464/. Excessive charge for books — Penalty. 12. Any 

school trustee charged with the sales of any books under the pro- 
visions of ^lis act, who shall directly or indirectly demand or 
receive any money for any book or books in excess of the contract 
price, as hereinbefore provided, shall be deemed guilty of a mis- 
demeanor, and upon conviction thereof shall be fined in any sum 
not less than ten nor more than one hundred dollars, to which 
may be added imprisonment in the county jail for a term not ex- 
ceeding sixty days. [El. Sup. § 1300.] 

Sec. 4484;;^ Embezzlement. 13. Any county school superin- 
tendent or trustee of any township or school corporations in this 
State who shall fraudulently fail or refuse, at the expiration of the 
term for which he was elected or appointed, or at any time during 
such term, when legally required by the proper person or author- 
ity, to account for and deliver and pay over to such person or per- 
sons as may be lawfully entitled to receive the same, all moneys 
or school books which may have come into his hands by virtue of 
the provisions of this act, shall be deemed guilty of embezzlement,, 
and upon conviction thereof shall be imprisoned in the state pris- 
on for any period not more than five years nor less than one year, 
and fined in any sum not exceeding one thousand dollars, and 
rendered incapable of holding any office of trust or profit for any 
determinate period. [El. Sup. § 1 301.] 

See § 4464.^. 

Sec. 4464;2. Appropriations — Repeal of laws. 14. The sum of one 
thousand dollars is hereby appropriated out of any funds in the 
state treasury not otherwise appropriated for the purpose of pay- 
ing the cost, and expenses incident to the giving of the notices 
herein provided for and carrying out the provisions of this act. All 
laws and parts of laws in conflict with the provisions of this act are 
hereby repealed. [El. Sup. § 1302.] 

See § 4464/. 

[1891, p. 99. Approved and in force March 5, 1891.] 

Sec 4464^. Bids for physiologies, grammars and histories, i. It 
shall be the duty of the board of commissioners for the purpose of 
securing for use in the common schools of the State of Indiana of 
a series of text-books, as constituted by the act of the general 
assembly in this section mentioned, to immediately advertise for 
bids, and to act upon such bids as may be submitted for the fur- 
nishing for use in the common schools of the State of Indiana of 
a spelling-book, a primary physiology, a more advanced work on 
physiology and hygiene, an elementary grammar, a complete 
grammar, and a history of the United States. In advertising for 
39 



§44^4/] EDUCATION. [6io 

such bids, and in acting upon any bid which may be submitted, 
such board of commissioners shall be governed as far as possible 
by the same terms, conditions and limitations concerning them, 
and shall require bidders and contractors to comply with all terms, 
conditions and limitations concerning bidders or contractors, so 
far as applicable, as are contained in an act of the ge«neral assem.- 
bly of Indiana, entitled, "An act entitled an act to create a board 
of commissioners for the purpose of securing for use in the com- 
mon schools of the State of Indiana of a series of text-books, 
definincf the duties of certain officers therein named with reference 
thereto, making appropriations therefor, defining certain felonies 
and misdemeanors, providing penalties for the violation of the pro- 
visions of said act, repealing all laws in conflict therewith, and 
declaring an emergency." Acts of the General Assembly of the 
State of Indiana, 1889, p. 74: Provided, That the standards of 
physiologies shall be Hutchinson's Laws of Health and Hutchin- 
son's Physiology and Hygiene: And pi^ovidcd further, That no bids 
shall be considered in which the price of a primary physiology 
shall exceed thirty cents for the volume, or in which a physiology 
and hygiene shall exceed sixty cents for the volume), or in which 
a history of the United States shall exceed sixty-five cents for the 
volume. 

See § 4464(7, 7iotc. 

Sec. 4464/ Board to order books. 2. It shall be the duty of the 
township trustees and school boards of the State, severally, on the 
first Monday of June in each year, and at such intermediate times 
as the necessity therefor shall exist, after considering the number 
and kind of adopted books already sold in the corporation, the 
number and kind of such books on hand, and ascertaining from 
their teachers or principal and superintendent, as the case may be, 
the enrollment of scholars in the different classes or grades of the 
schools of the corporation, to order such quantities of the books 
which the.State has at that time adopted as may seem to him or it 
to be necessary for use in the schools of such corporation until the 
first day of June then next succeeding; the estimate being based 
upon the information which it is above provided shall be gathered ; 
and on the advice of the county superintendent; Provided, That 
the total orders for any school year of the books adopted hereto- 
fore, and those mentioned in section one of this act, shall not 
exceed the amount of one dollar for each child enumerated for 
school purposes in the corporation : And, provided further, That 
it shah be the duty of the state superintendent to properly scale 
down any order for books which may pass through his hands, in 
case that it shall seem clear to him that such order is for a quan- 
tity of books in excess of the needs of the corporation during the 
period for which such books were ordered. 

See § 4464^. 



6ll] SCHOOL BOOKS [§§ 4464^, 4464^ 

Sec. 4464^. Receipt of books — Eeport of sales. 3. Whenever 
an order for the books which the State has adopted, or may adopt, 
shall have been filled by a contractor with the State and the books 
delivered to the township trustee or school board making such 
order, it shall be the duty of such trustee or boards to immedi- 
ately acknowledge the receipt of such books to the contractor, 
and also to make a report thereof to the county superintendent, 
and it shall be lawful for any such trustee or school board to at 
once make payment for such books to the contractor through the 
superintendent of the county out of any school funds in excess 
of the needs of their respective townships or school corporations 
for current expenses or other special needs, in the hands or con- 
trol of such trustee or board, aside from the principal or interest 
of the common congressional school fund or the "School Revenue 
for Tuition:" Provided, Jiowever, That no debt shall ever be con- 
tracted or warrant or other evidence of indebtedness ever be issued 
by a trustee or board on account of a purchase of books : And 
provided further, That whenever any books are paid for by any 
trustee or school board, such trustee or school board shall be liable 
personally and liable upon their official bonds respectively for the 
preservation, custody and safe-keeping of all such books until the 
same are sold and accounted for, or otherwise disposed of accord- 
ing to law. Whenever a book paid for as aforesaid is sold by a 
trustee or school board, it shall be the duty of such trustee or 
school board to turn the entire proceeds of such sale into the fund, 
out of which payment was made to the contractor, to reimburse 
the fund for such advancement. In case a trustee or school bo-ard 
receiving books from a contractor with the State shall not pay for 
such books, as provided in this section, he, or it, shall make quar- 
terly reports under oath of the sale of such books, accompanied 
by all cash received therefor, to the county superintendent for 
transmission to the contractor as now provided by law, until such 
books shall have been fully paid for. The provisions of this sec- 
tion shall apply to all orders heretofore filed: Provided, That if 
any trustee or board shall have on hands any books heretofore 
ordered for which he, or it, may have no immediate use, the same 
shall upon the order of the county superintendent, or the state 
superintendent of public instruction, be returned to the contractor, 
or be shipped to such other point as the contractor may direct, 
the contractor to pay all freight charges on such shipment ; and 
the county superintendent and such trustee or board shall there- 
upon have credit for such books so returned or shipped. 

Sec. 4464r. Books for poor — Pay of trustee. 4. It shall be the 
duty of each township trustee and each school board to furnish the 
necessary school books so far as they have been or may be adopted 
by the State, to all such poor or indigent children as ma}' desire to 
attend the common schools of his or its corporation, as in his, or 
its opinion would be otherwise unable to attend such schools: 



§§44^4^ — 44^4^] EDUCATION. [6l2 

Provided, That no township trustee in this State shall receive an 
amount exceeding five dollars as compensation for his services in 
any one year for duties performed in carrying out the provisions 
of this act, or the act to which it is supplemental. 

Sec. 4464^. Reports when books are paid for. 5. When books 
are fully paid for out of the funds of a school corporation as pro- 
vided in section three of this act, it shall not be necessary for the 
township trustee or school board of such corporation to make 
quarterly reports of the sale of the adopted books, but instead 
thereof a report shall in all cases be made by him, or it, upon oath 
on the first Monday of August in each year to the county super- 
intendent, and like report upon oath shall at the same time be made 
to the board of commissioners of the county, which report shall 
severally state the number and kind of books on hand at last report; 
the number and kind sold ; the number then on hand; the disposi- 
tion of the money received on such sales ; the amount of money 
used from any school fund in payment for books received ; and 
the condition of such funds. Such reports shall also state the num- 
ber and kind of books furnished as provided in section four of this 
act; for the price of which books so furnished the township trustee 
or school board furnishing the same shall have credit. 

Sec. 4464/. Appropriations, 6. The sum of one thousand dol- 
lars is hereby appropriated out of the general fund in the state 
treasury to enable the board of school commissioners mentioned 
in section one of this act to advertise for bids as in said section 
provided. 

See § 4420;-;. 

Sec. 4464?/. Failure of trustee to report, penalty. 7. Any town- 
ship trustee or member of a school board, receiving or being in 
possession of any moneys which at the end of the next quarter 
should be turned over to the county superintendent to pay a con- 
tractor for books sold which have not been paid for out of the 
funds of the corporation, who shall fail to report the sale of such 
books at the end of such next quarter, or who shall fail to pay 
therewith the full proceeds thereof to the county superintendent, 
or so much thereof as may be necessary to fully pay the contractor, 
shall be liable, after demand upon him, to a suit on his official 
bond, brought on the relation of the county superintendent, whose 
duty it s!iall be to bring the action for the amount due from him, 
and damages, if any, and any judgment which shall be rendered in 
favor of the plaintiff in the action shall contain a reasonable attor- 
ney's fee and shall be payable without relief from valuation or 
appraisement laws. The same liability upon his bond shall accrue 
against a township trustee or member of a school board who shall 
refuse to pay over as in this act required any moneys drawn from 
:he funds of his corporation on account of books purchased or who 



613] SCHOOL LOOKS. [§§ 4464V, 4464W 

shall fail to apply all moneys for books sold that have been pur- 
chased by the corporation to the reimbursement of the proper fund. 
Any judgment rendered against a township trustee, school board, 
or member of a school board because of the non-performance of 
any duty, shall include a reasonable fee for the plaintiff's attorney. 
See § 4464/. 

Sec. 4464z^ Special bond of county superintendent. 8. It shall 
be the duty of each county school superintendent of this State 
within thirty days from the taking effect of this act, and of each 
county school superintendent hereafter elected, before he enters 
upon the discharge of his official duties to execute a special bond 
with at least two freehold sureties of his county, payable to the 
State of Indiana, conditioned that he will faithfully and honestly 
perform all the duties required of him by law, and account for and 
pay over all moneys which may come into his hands pursuant to 
law, in a pfenal sum which shall be equal to one hundred dollars 
for every thousand inhabitants of his county, as shown by the last 
census immediately preceding the giving of such bond, which bond 
shall be executed to the approval of the board of commissioners 
of his county, and upon failure of any county school superintend- 
ent to give such bond, his office shall become immediately vacant 
and the board of commissioners of his county shall immediately 
appoint some competent and suitable person to fill such vacancy 
for the unexpired term of his office. 

See § 44647", 7zofe. 

Sec. 4464z£/. Report of county superintendent — Penalty for failure 
to report. 9. It shall be the duty of such county school superin- 
tendent within ten days after the receipt of any report, or money 
from a township trustee or school board as hereinbefore provided 
for, to make a full, true, complete and detailed report thereof to 
the contractor, which report shall be accompanied by all cash re- 
ceived by him from the school officers. The report above provided 
for shall be duly sworn to by the county superintendent and a 
duplicate thereof shall be filed by him in the office of the auditor 
of his county. Upon the failure of any county school superin- 
tendent to make report to the contractor and to transmit the cash 
as required by law, a right of action shall immediately accrue to 
the contractor against the said county school superintendent, and 
the sureties upon his bond provided for in this act, for an account- 
ing and for the recovery of any moneys received and not trans- 
mitted by him and for any damages which may have resulted from 
his neglect or failure to comply with the provisions of this act, 
and any judgment upon any such bond shall include a reasonable 
fee for the attorney prosecuting such suit, and such judgment shall 
be without relief from valuation or appraisement laws and shall be 
without stay of execution. 

See § 4464^. 



§g y\/[6/\r 4464s] EDUCATION. [614 

S&c. 44:64.r. Embezzlement by county superintendent. 10. Any 
county school superintendent, or trustee of any township or mem- 
ber of any school board in this State who shall fraudulently fail or 
refuse at the expiration of the term for which he was elected, or 
appointed, or at any time during such term, when legally required 
by the proper person or authority to account for and deliver and 
pay over to such person or persons as may be lawfully entitled to 
receive the same, all moneys, or school books which may come 
into his hands by virtue of the provisions of law shall be deem^ed 
guilty of embezzlement and upon conviction thereof shall be im- 
prisoned in the state prison not more than five nor less than one 
year and fined in any sum not exceeding one thousand dollars and 
rendered mcapable of holding any office of trust or profit for any 
determmate period. 

See § 4464;;2. 

Sec. 4434>. Books, uniform use of. 11. The books,which have 
been, or may hereafter be adopted by the State of Indiana for use 
in its common schools by virtue of this act, or the act mentioned 
in section one hereof, shall be uniformly used in all the common 
schools of the State, in teaching the branches of learning treated 
of in such books, and it shall be the duty of the proper school 
officers and authorities to use in such schools such books for teach- 
ing the subjects treated in them. 

Sec. 4464^. Shipment of books — Trustee preserves. 12. It shall 
be the duty of any person or persons, firm or corporation who 
shall hereafter furnish and supply books under the provisions of 
this act, or under the provisions of the act of 1889, title w^hereof 
is set out m the first section of this act, to ship to and to notify 
the consignee of such shipment, and deliver the books ordered by 
the various county superintendents, at such railway stations as 
may be most convenient for the various township trustees or 
school board in the several counties to receive the same as may be 
directed by the said county superintendent. And in preparing 
such books for such shipment it shall be the duty of every such 
contractor to wrap each several kind of books by themselves in 
packages of not to exceed five or ten books, according to their 
size, each such package to be securely wrapped in good substan- 
tial paper of sufficient weight to protect the books enclosed therein 
and to be closed at each end thereof, and each package to have 
plainly and clearly marked or printed on the outside thereof the 
kind and number of books contained therein, and as many of such 
packages shall be enclosed in larger packages or boxes as may be 
safe and convenient for shipmiCnt. And upon the receipt of such 
books it shall be the duty of each township trustee or school board 
to carefully care for and protect such books until sold, and to pre- 
serve the same in the original packages in which they are wrapped 
without opening, until all copies of the same books heretofore re- 



615] SCHOOL BOOKS. [§§ 4464.^^ 4464CC 

ceived by him or it have been sold, and thereafter not to open 
any such package until all copies contained in packages previously 
opened have been sold: Provided, If upon the opening of any 
such package, any township trustee or school board shall discover 
that any of the books therein contained have been damaged, or 
are defective at the time of their receipt by him, or it, so as to be 
unsalable, he, or it, shall not be required to offer the same for sale, 
but in such an event, he, or it, shall immediately notify the county 
superintendent of such damaged or defective book or books, who 
shall immediately thereafter give notice thereof to the contractor 
furnishing the same, and thereafter such damaged or defective 
book or books shall be subject to the order of the contractor. 

Sec. 4464(^<3:. Labels for books. 13. It shall be the duty of any 
person or persons, firm or corporation who may hereafter furnish 
and supply books under the provisions of this statute, or of the 
act of 1889, the title whereof is set out in the first section of this 
act, to print in large letters upon the outside of the first cover of 
each book so furnished and supplied by him or them, the name 
of the adopted book, and upon the outside of the back cover the 
price at which such book is furnished to be sold to pupils, under 
such contract, and it shall be the duty of all county superintend- 
ents, township trustees, and other school officers, and school teach- 
ers to see that all books so furnished to pupils, for use in the schools 
of the State shall bear such imprint: Provided, This section shall 
not apply to copy-books. 

Sec. 4464.^^. Distribution of this act 14. It shall be the duty of 
the superintendent of public instruction to cause to be printed at 
the expense of the printing fund, and to send to each of the county 
superintendents as soon as possible after the passage thereof a 
sufficient number of copies of this act to provide such superin- 
tendent and each township trustee and each member of a school 
board in such county w4th one copy of such act. Each county 
superintendent shall, at once, upon the receipt of the copies in- 
tended for- his county, mail or otherwise deliver to each township 
trustee and member of a school board in his county a copy of this 
act. 

Sec. 4464rr. TMs act supplemental to act of 1889. 15. Nothing 
in this act shall be construed to in anywise affect the act men- 
tioned in section one of this act, and the two acts shall be regarded 
as each supplementing the other, except where this act shall pro- 
vide a different procedure from the first act, in which case the 
provisions of this act shall govern. Nothing in this act shall be 
construed as affecting or impairing any contract right secured by 
any contractor under the act mentioned in section one of this act, 
but all such contracts are hereby declared to be, and are hereby 
made binding on the State to the same extent as they would have 
been had this act not been passed. 



g§ ZI465 4467J EDUCATION. [616 

ARTICLE 7— TAXATION. 



^^,^^^ ^<^.^. -rT-7- Local tax for tuition. 

4460! Uniform tax. 447°- Local tax, how applied. 

4467. Special tax. 447i- Special tax to pay debts. 



4465' 
4460, 



State tax. 


4469 


Uniform tax. 


4470 


Special tax. 


4471 


Assessment and collections. 





[1865, p. 3. Approved and in force March 6, 1S65.] 

Sec. 4465. State tax. i. There shall be annually assessed and 
collected as state and county revenues are assessed and collected, 
sixteen . cents on each one hundred dollars of taxable property, 
real and personal, in the State, and fifty cents on each taxable 
poll, for the purpose of supporting a general system of common 
schools. 

An act of 1873 (p. 216) legalized tax levies for tuition made by school trus- 
tees prior to its enactment. 

[1869 S., p. 41. Approved and in force May 13, 1S69.] 

Sec. 4488. Uniform tax. In assessing and collecting taxes for 
school purposes under existing laws, all property, real and per- 
sonal, subject to taxation for state and county purposes, shall be 
taxed for the support of common schools, without regard to the 
race or color of the owner of the property. 

[1873, p. 68. Approved and in force March 8, 1S73.] 

Sec. 4467. Special tax. 12. The trustees of the several town- 
ships, towns, and cities shall have the power to levy a special tax, 
in their respective townships, towns, or cities, for the construction, 
renting, or repairing of school-houses, for providing furniture, 
school apparatus, and fuel therefor, and for the payment of other 
necessary expenses of the school, except tuition; but no tax shall 
exceed the sum of fifty cents on each one hundred dollars' Vv'orth 
of taxable property and one dollar on each poll, in any one year, 
and the income from said tax shall be denominated the special 
school revenue. Any tax-payer who may choose to pay to the 
treasurer of the township, town, or city w^herein said tax-payer has 
property liable to taxation, any amount of money, or furnish 
building material for the construction of school-houses, or furniture 
or fuel therefor, shall be entitled to a receipt therefor from the 
trustee of said township, town, or city, which shall exempt such 
tax-payer from any further taxes for said purposes, until the taxes 
of said tax-payer, levied for such purposes, would, if not thus paid, 
amount to the sum or value of the materials so furnished or amount 
GO paid : Provided, That said building materials or furniture and fuel, 
shall be received at the option of said trustee. 

I. Tlic scctioji constittitional. This question is decided in Rose vs. Bath, 
Tp. 10 Ind. 18, and several other cases, 102 Ind. 307. The school corporations of 
the State can not be authorized by statute to establish and maintain schools 
separate and apart from the common school system of the State. Such a statute 
is unconstitutional. But they are not prohibited from aiding those common 



6iy] TAXATION. [§§4468,4469 

schools established under the supervision of the State, by levying a special tax 
10 Ind. 70, 5 Ind. 557 , see 102 Ind. 307. 

2. W/io levies. There can be no doubt but that the special tax authorized 
to be levied by section 12 of the school law is to be levied by the trustee of the 
school township or by the trustees for school purposes appointed by towns and 
cities. — JVooHe^i, Atiy. Gen. It seems to me that the school trustees levy the 
taxes authorized by section 12 of the school law. — Baldxvin, Atty. Gen. This 
view is sustained by the doctrine of Carmichael vs. Lawrence, 47 Ind. 554. 

3. Co7n?uissioners have no control. By an act approved March 8, 1873, 
[§ 4467], the legislature amended the act of 1865, giving trustees the absolute 
right to levy a special tax by increasing the amount from twenty-five cents to 
fiftv cents, and reaftirm_ing the former law, otherwise in the very words of it. 
This clearlv removes all authority of commissioners over the trustees in making 
their special school levies. — Hopkins, Siipt. The board of county commissioners 
has no control over school trustees in the levy of school taxes. — Smart, Supt. 

4. Uniform system. A sj^stem that secures to all the various subdivisions 
of the State equal and uniform rights and privileges, leaving only to the local 
authorities the right, under the law, to govern the local school affairs, is a 
general and uniform system, and a law providing such a system is a general law 
within the meaning of the constitutiun. It is, therefore, competent for the leg- 
islature to delegate the power of assessing taxes for local school purposes to the 
inhabitants of the various localities, but the provisions of the law providing for 
such local taxation must be open to all corporations of like character, and the 
statute must be general in its nature and operation, 102 Ind. 307. 

[1865, p. 3. Approved and in force March 6, 1875.] 

Sec. 4463. Assessment and collection. The county auditor shall, 
upon the property and polls liable to taxation for state and county 
purposes, make the proper assessments, of special school tax levied 
by the trustee, in the same manner as for state and county revenue, 
and shall set down the amount of said tax on his tax-list and dupli- 
cate thereof, as other taxes are set down, in appropriate columns; 
and he shall extend said assessment to the taxable property of the 
person transferred, wliich is situated in the township, tov/n or city 
to which the transfer is made, and to the property and poll of the 
person transferred, situate in the township, town or city in which 
the person taxed resides, according to the rate and levy thereof in 
the tovv^nship, town or city to which the transfer is made, and for 
its use; and said tax shall be collected by the county treasurer as 
other taxes are collected, and shall be paid, when collected, to the 
treasurer for school purposes of the proper township, town or city, 
upon the warrant of the county auditor. To enable county audi- 
tors correctly to assess said tax, the county superintendents of the 
several counties shall, at the time they make out and report to the 
auditor the basis of the apportionment of school revenue for tuition, 
as is required by § 4432, make out and report to said auditor a 
statement of transfers which have been made for school purposes 
according to §§ 4472 and 4473. 

I. TVhen paid to toxi'nship trustee, R. S. 18S1, § 6000, 

[1067, p. 30. Approved March 9, 1867, and in force June 6, 1S67.I 

Sec. 4469. Local tax for tuition, i. The trustees o( the civil 
tov/nships, the trustees of incorporated towns, and the common 



§§4470; 447i] EDUCATION. [6i8 



councils of cities shall have power to levy, annually, a tax not 
exceeding twenty-five cents on each one hundred dollars of taxable 
property and twenty-five cents on each taxable poll; which tax 
shall be assessed and collected as the taxes for state and county 
revenue are assessed and collected. 

1. JV/io levies dt seems to me that the civil trustees of towns levy this tax. 
The act says, the trustees of the civil townships. — Baldwin, Ally. Got. 

2. By ivJwm assessed. The local tuition tax should be assessed and collected 
bv the county auditor and treasurer, as in the case of the special school tax. 
Though not "provided in so many words that it shall be extended to the property 
of a transferred person, yet, inasmuch as his property is subject to the tax in 
sonic place, it \& ]ust\ce and equity that the corporation to which he transfers 
should have the benefit of it. But the statute makes some general statements 
which were, no doubt, intended to cover just such cases as the one that has here 
arisen. It provides that the funds arising from such tax shall be under the 
charge and control of the sajue officers, secured by the sa7ne guara?itecs, subject 
to the same 7'ules and regulatiojiSy etc., as funds arising from taxation for com- 
mon school purposes, by the laws of this State. The conclusion, therefore, is 
inevitable that the tuition tax should be extended to the property in the town- 
ship of the transferred person, and that it should be controlled by the county 
officers, and township and school trustees. — Hopkins, Supt. 

3. Conslilutionalily . This section is constitutional, § 4467, note 4. 

Sec. 4470. Local tax, how applied. 2. The funds arising from 
such tax shall be under the charge and control of the same officers, 
secured by the same guaranties, subject to the same rules and 
regulations, and applied and expended in the same manner as funds 
arising from taxation for common school purposes by the laws of 
this State : Provided, That the funds assessed and collected in any 
civil township, incorporated town, or city shall be applied and 
expended in the same civil township, incorporated town or city in 
which such funds shall have been assessed and collected. 

I. Anticipation This revenue is not forbidden to be anticipated, as is the 
State's tuition revenue, 30 Ind. 178. 

[1873, p. 209, Approved and in force March 11, 1S73.] 

Sec. 4471. Special tax to pay debts. In all cases where any 
township trustee may have heretofore made and contracted debts 
against any township in the construction, repairing, or completion 
of school-houses, or in providing furniture or school apparatus 
therefor, and the special school revenue tax, as provided for in 
section 4467, shall be insufficient to satisfy, pay, and liquidate ' 
debts so made and contracted by such trustee, then, and in that 
case, it shall be lawful and such township trustee is hereby author- 
ized to levy an additional tax of not 'exceeding twenty- five cents 
on each one hundred dollars' worth of taxable property, in any one 
year, to the amount now authorized to be levied under said sec- 
tion, for the purpose of paying, satisfying, and hquidating the 
debts made and contracted by said trustee, for the purposes afore- 
said ; and it shall be lawful and said trustee is hereby authorized 
to make said levy for each and every year after the passage of this 
act, until said debts, made and contracted as aforesaid for the pur- 



619] ENUMERATION. [§ 4472 

poses aforesaid, shall be fully paid, satisfied and liquidated : Pro- 
vided, That nothing in this act shall be construed to alter, change, 
modify, repeal, or in any way conflict with section 4467 : Provided, 
further, That such additional levy shall only be made after the 
legal voters of the township to be affected thereby shall have 
declared in favor thereof. 

I. Time limited. This section applies to such debts only as were contracted 
previous to its taking effect, March 11, 1873, and does not authorize a levy to pay 
anv indebtedness created since that date. — Hard, Attx. Gen. 



ARTICLE 4— ENUMERATION. 

SEC. SEC. 

4472. Trustee to take — His duties. 4475- Enumeration, where filed. 

4473. Transfers. 4476. Township in two or more counties — 

4474. Payment for transfer. Report. 

[1873, p. 68. Approved and in force March 8, 1873.] 

Sec. 4472. Trustee to take — His duties. 14. The trustees of 
the several townships, towns, and cities shall, between the first of 
March and the first of May in each year, make an enumeration of 
the children, white and colored, within their respective townships, 
towns, and cities, between the ages of six and twenty-one years, 
exclusive of married persons; and in making said enumeration, 
the trustees shall distinguish between the white and colored chil- 
dren, enumerating them in separate lists, and shall list the names 
of parents, guardians, or heads of families, male and female, hav- 
ing charge of such children; and opposite each name, in appro- 
priate columns, shall be entered the whole number of children in 
charge of the person so named, specifying, particularly, the num- 
ber of males, the number of females, the number of the school to 
which such person is attached for school purposes, and the num- 
ber and initials which designate the congressional township in 
which such person resides; including in said list and enumeration 
the names of such persons as have been transferred to his town- 
ship, town, or city, from other townships, towns, or cities, and 
the enumeration of their children, and excluding therefrom the 
names and number of children of such persons as have been trans- 
ferred from his township, town, or city, to other townships, towns, 
or cities. Each township trustee, upon making the first enumer- 
ation after the taking effect of this act, shall inquire of each person 
whose name he so lists, to which school he or she desires to be 
attached; and such persons, upon making their selection, shall be 
considered as forming the school district of the school selected, 
and none shall be allowed thereafter to attach themselves to, or 
have the privilege of, any other school but by the consent of the 
trustee, for good cause shown. At subsequent enumerations, the 
same inquiry shall be made by the trustee of the parent, guardian, 
or head of family, having charge of children between the ages 



§ 4472] EDUCATION. [620 

aforesaid, whose residence has been changed, or whose children 
have become subject to be enumerated for the first time since the 
last enumeration. In case a change in the location of a school in 
the township has been made since the last enumeration, the trus- 
tee shall make the same inquiry of the persons whose school priv- 
ileges are affected by such change. But such inquiries need not 
be made by the trustee of incorporated towns and cities when 
they take their enumerations. The persons listed in each of such 
towns and cities shall be considered as forming but single school 
districts therein, distinct from the townships in which they are 
situated. 

1. W/io may he en^imeratcd. Only persons between the ages of 5 [now 6] 
and 21 rears are entitled to be enumerated, and to have the benefits of the com- 
mon schools, 20 Ind. 268, A minor attains to 21 years of age on the day pre- 
ceding the twenty-first anniversary of his birth, 6 Ind. 447. 

2. Reside7ice. The legal domicile and residence of a minor, not emanci- 
pated, is that of his parents. Parents residing in another state can not send 
their children into this State for the purpose of procuring an education, and 
enable them to acquire such a residence here as will entitle them to admission 
into the common schools of this State, unless the circumstances are such as 
will create a bona fide legal residence here, 18 Ind. 14. 

While this section declares that the privileges of the school shall be limited 
to such persons as were attached to the school at the time of the enumeration, 
it must not be so construed as to exclude persons who move into a district after 
the enumeration. Such a construction would, in many cases, Avork serious 
detriment. — Hoss, Stcpt. 

3. Noii-reside7it students. Persons residing temporarily within a corpora- 
tion, for the purpose of studying at a school or college there located, do not 
acquire a legal residence therein, and the trustees of such corporation have no 
more right to enumerate them than they Avould have to enumerate a Sunday- 
school picnic from a neighboring county that thev might chance to find spend- 
ing a day within their borders. — Bloss, Siift. 

4. Choice of districts. It should be borne in mind by the trustee that the 
choice of a school district is not to be an aji7iual, but z. fer7nanent choice ; and 
it will be well to inform every parent or guardian, at the time of making the 
enumeration, of the permanent character of the preference thus to be expressed, 
so that there shall be no just cause of complaint on the part of any. — Mills, 
Supt. A person may be detached from one district and attached to another at 
any time during the year, with the consent of the trustee, upon presentation to 
him of a suitable reason therefor; but a person whose school privileges have 
been affected by his removal, or by the relocation of a school-house, has the 
right at the next enumeration to choose a district in the toAvnship to which he 
will be attached. — Si7iart, Supt. The distinction must be observed between a 
transfer and an attachment to a district, the former being a change from one 
corporation to another, the latter from one district to another in the same cor- 
poration. — Bloss, Supt. 

5. Choice of schools i7i cities ajid toxims. There is no provision in the law, 
that we are aware of, authorizing parents or guardians to determine to which 
one of the schools they Avill send their children in towns and cities. These 
matters are managed, we believe, by the trustees exclusively, in towns and cities, 
who, doubtless, to some extent, consult the wishes of the inhabitants, having in 
view the grade of the school which it is proper that any given pupil should 
attend, the convenience of parents and the surrounding circumstances, 44 Ind. 
207. 

6. Tra7isferred pe7'S07is. I believe that it is the dutv of the school trustee 
of the corporation to w^hich the transfer is made to enumerate the transferred 
person, even though he is obliged to go outside his civil corporation to do this. 
— Smart., Siipt. 



62 1] ENUMERATION. [§ 4473 

7. Privileges of certain childre7i. The school trustees are required to "make 
an enumeration of the children, white and colored, within their respective 
townships, towns and cities,*' and to " list the names of parents, guardians, or 
heads of families, male and female, having charge of such children." The law 
in this section recognizes three distinct relations in which the person having 
charge of a child may stand to the child, viz.: parent, guardian, and head of a 
familv. The term " heads of families " must refer to a relation not included in 
the terms "parents" and "guardians." I think it is intended to cover cases 
where a person has children of school age in his home and under his protection, 
whether as employes or as members of his family, though without formal 
adoption or legal guardianship. But there are other cases which the provision 
of the statute as to listing names does not include, but which must be provided 
for under the requirement for enumerating the children Avithin the several cor- 
porations. The domicile of a mJnor is with his parent or guardian, and in 
theory every minor is supposed to have a guardian. But, in fact, many are 
completely sui juris^ independent of parental control or support, and living by 
their own labor. The homes of such, for the purposes of this section, must be 
the places where they are employed or stay without any immediate intention 
of departing therefrom. No one can be said to have charge of them ; they do 
not live at the homes of their employers, and are not under their protection as 
heads of families. Thejf are none the less entitled to school privileges under 
what our constitution requires to be " a general and uniform system of common 
schools, wherein tuition shall be without charge, and equally open to all." The 
supreme court remarks, incidentally, in Johnson -c'. Smith, 64 Ind. 275: "The 
theory of these statutory provisions is, that each and every child of the proper 
age, without regard to race or color, v\-ithin the limits of this State, is entitled 
of right, and without charge for tuition, to the benefits of such an education as 
mav be obtained in and by our common schools," I hold, therefore, that all 
persons between the ages of six and twenty-one years are entitled to school 
privileges, and may be enumerated in the school corporations, in which they, 
in good faith, have their home — understanding home in the general sense, not 
in the technical sense of legal domicile. Those who are in any way in charge 
of a resident head of a family should be so enumerated ; those who can not be 
so assigned may be enumerated as without guardian. In acting under this in- 
terpretation trustees should guard against imposition, by finding out whether the 
case can be brought under the law of transfer (§§ 4473 and 4474) ; and, if not, 
whether the child is dependent upon himself for support, or upon the person 
with whom he lives. In either case he should be admitted to the schools. But 
children can not legally be maintained and sent to school by parents or guard- 
ians in corporations other than those in which they themselves reside, nor can 
a minor become a resident of a school corporation merely to acquire an educa- 
tion therein. (Note 2, above.) — Holcombc^ Supt. 

8. Mandate. In an application for a mandate to enforce the admission of 
a person to a common school, the complaint must show that the applicant is 
under twenty-one and not under five years of age, and unmarried, 20 Ind. 268. 

9. Colored schools and children. The township trustee will not be required 
by mandate to establish separate schools for colored children, unless it is shown 
to be practicable ; nor will he, unless svich separate school is practicable, be 
required by mandate to make separate lists of such children, as provided by 
this section, 85 Ind. 213. 

^1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4473. Transfer. i6. When persons can be better accom- 
modated at the school of an adjoining township, or of any incor- 
porated itown or city, the trustee of the town or city in which such 
persons reside shall, if such person so request, at the time of mak- 
ing the enumeration, transfer them, for educational purposes, to 
such township, town, or city, and notify the trustee of such trans- 
fer; which notice shall furnish the enumeration of the children of 
the persons so transferred. Each trustee shall, w4th his report of 



§ 4473] EDUCATION. [622 

the enumeration, report distinctly the persons transferred to his 
township, town, or city, for school purposes ; indicating in said 
report the number of children in charge of the persons transferred, 
with the same particularity that is observed in the enumeration. 

1. The 7'ight of transfer. Persons can be transferred at no other time than 
the enumeration, and then only when the trustee is satisfied that they can be 
better accommodated. — Fletcher., Suft. 

The right to be transferred is not absolute, depending upon the choice of the 
citizen, like the right to be attached to any school in his township. It can only 
be claimed if he "can be better accommodated " by such transfer, and the power 
of the trustee to make the transfer depends upon the existence of that condition. 
Of necessity, then, he must determine whether or not the condition exists, and 
act upon such determination. But his decision is not final. Section 4537 ex- 
pressly provides for an appeal to the examiner from all decisions of the trustee 
relative to school matters; and for the purpose of preventing, as far as can be, 
vexatious litigation, provides that the decision of the examiner shall be final as 
to certain matters, among which is enumerated " transfers of persons for school 
purposes," 26 Ind. 345. 

2. To zi'hat corporations. The word adjoining must be observed. Persons 
can onlv be transferred from one township to an adjoining township. It is 
difficult"^ to see how a person (in view of the regularity with which our town- 
ships are laid out) could be better accommodated in a township not adjoining 
than in the one of his residence. But the word adjoining does not apply to 
towns and cities, except that it appears from § 4474 that the city must not be 
farther awav than the adjoining county. — Bioss, Siipt. 

3. Better accommodation. When a district, by reason of its own failure, neg- 
lect, or want of interest, has not an efficient school, a party attached to the dis- 
trict can not claim the right of transfer, on the plea of better accommodation, 
because the school is a poor one, for it would be taking advantage of his own 
failure of duty or want of interest. If .a transfer under such circumstances could 
be claimed, it would work to the injury of many of our schools, as well as pro- 
duce difficulty in their management. 

But if a large majority of the pupils of the district, in which the party desir- 
ing a transfer resides, are of a primary grade, so that pupils more advanced 
can not be accommodated, the party in question, on a plea of better accommo- 
dation, that his children may pursue studies more advanced than can be taught 
in the school, can claim the right of transfer, for in this case the transfer is not 
to the injury, but to the advantage and interest of the school. 

The term "better accommodated '' the legislature evidently intended should 
apply to those circumstances over which an individual has no control, and not 
to those which he might have avoided or remedied. A person can not be trans- 
ferred to avoid the payment of a high rate of taxes. — Baldxi'in, Atty. Gen. 

Trustees should, under no circumstances, permit a -cransfer when they be- 
lieve it is sought simply to avoid a tax in the township from which the person 
wishes to be transferred. Neither is dislike of neighbors or neighbors' children 
good cause for transfer. — Fletcher., Supt. 

4. Re-transfer. A person can not be transferred without his consent, nor 
can he be transferred if he has no. children of school age. A transfer once made 
need not be renewed at each enumeration, but remams until a re-transfer is 
made. When a transferred person ceases to have children of school age, a cause 
arises for a re-transfer to his original corporation ; but that cause must be fol- 
lowed vip by an actual re-transfer and report by the proper officers ; otherwise 
he continues in, and pays taxes upon his property in the district to which he 
was originally transferred. — Baldxuin, Atty. Gen. 

5. Dicty of auditor, superi}iie7ident and trustee. The additional labor re- 
quired of tlie auditor by a transfer is simply to enter the name of the party 
transferred and the value of his property situate in the township in which he 
resides upon the tax duplicate of the township to which the transfer is made, 
and assess upon such property the proper special school tax Ail othe- property 
of the party transferred is subiect to special school tax m the township where it 



623] EXU^IERATION. [§4474 

is situate. County superintendents in making the statement of transfers re- 
quired by this section should state distinctly the names of the parties trans- 
ferred, the township in which each resides, and the township to which transferred. 
Nothing short of this will enable the auditor properly to assess the special school 
tax required. 

Notice of transfers should be given before the first day of May in order that 
the trustee may be able to include the names of parties transferred in his list 
and enumeration, as required by section 4472. 

For the convenience of the county superintendent, each trustee should, at 
time of making his report of enumeration, make a separate report of all trans- 
fers to his township with the same particularity required in taking the enumera- 
tion. — Hoss, Slept. 

6. Records of trajisfer. It is the duty of the trustee that transfers; of the 
trustee to whom the transfer is made; of the superintendent, and of the auditor, 
each and all, to keep an official record of all transfers of children for school 
purposes. The trustee to whom the transfer is made can not refuse to receive 
it. — Baldzvin, ^tty. Gen. 

7. Taxes of transferred persons — On 7vhat property- When a person is 
transferred for school purposes to any township in his own county he must 
pay to the county treasurer, on all his property situated in the township in 
which he resides the same rate of school and poll taxes as is paid by the people 
of the township to which he is transferred, and for the use of that township. If 
he owns property in another township, it must be taxed at the rate of other 
property in that township, and for the use of schools therein. — Larrabee, Snpt. 

Method suggested. The simplest method of securing the purpose of these 
provisions will be for the trustees of the townships to which any persons have 
been thus transferred, to enroll them as members of their respective districts, 
and ever after take the enumeration of their children, and assess the township 
tax on their property. — Alills, Supt. 

8. To -joliat iaxes liable. A transferred person is liable to all taxes levied 
in the corporation to which he is transferred, under sections 4467, 4469, 4471 
and 4490. 

9. Property of tvife or tenant. The father is the head of the family, and as 
such has charge of the children, and has power to have his children transferred 
for school purposes even against the will or wish of the wiie, but he has no 
control over her property. He could not, by transferring his children to another 
township, etc., transfer his wife's property for school taxation, and thus submit 
it to a greater or different tax without her consent. In all similar cases the 
wife should join in the application for the transfer, and the trustee take her 
written consent for the taxation of her property if the application is granted. 
If a tax-payer has a'tenant on his farm who has charge of children entitled to 
the privileges of school, such tenant can be transferred, although, of course, the 
landlord's property could not be .taxed in the corporation to which his tenant 
was transferred. — Baldxvin^ ^^y- Gen. 

10. Removals. If a transferred person moves into the corporation to which 
he (has been transferred, that corporation thereby loses the right to tax his 
property situated in the corporation from which he has removed. If he moves 
into a different corporation he can not be taxed therein till after the next 
enumeration, when he may be transferred thereto by the trustee of the corpo- 
ration in which he had last been taxed. — Bloss, Supt. 

Sec. 4474. Transfer to an adjoining county. 17. Each person 
so transferred, for educational purposes, to a township, town, or 
city in an adjoining county, shall, annually, pay to the treasurer 
of such township, town, or city (when a tax is levied therein for 
the purposes aforesaid) a sum equal to the tax levied, computing 
the same upon the property and poll, liable to tax, of such per- 
sons in the township, town, or city where he resides, according to 
the valuation thereof by the proper assessor ; which payment shall 



§§ z^75' 447*5] EDUCATION. [624 

release his property from special school tax in the township in 
which he resides. In default of such payment, he shall be debarred 
from educational privileges in the township, town, or city to which 
he may have been transferred ; and the trustee thereof shall notify 
the trustee of the township, town, or city in which he (the person 
transferred) resides, of such exclusion. 

1. See section 446S. 

2. To ivhatco7'porat{ons. The township to which a transfer is made, though 
in a different county, must be adjoining to the one in Mhich the person resides, 
but it seems that he may be transferred to anv town or city in a county upon 
which his own township borders. — Bloss, Stipt. 

3. Taxes — To zvhom paid. A person transferred to a township in another 
county must pay directly, of his own accord, to the treasurer of the township 
to which he is transferred, a sum equal to the tax in such township, computing 
the same upon all his property in the township where he resides. Whenever a 
person, transferred to another county, in compliance with the provisions of this 
section, pays personally to the treasurer of any township the required amount 
on his property in the township in Avhich he resides, that property should of 
course not be held liable to any tax assessed for school purposes in the town- 
ship from which he has been transferred. The same property ought not to be 
taxed, directly or indirectly, for the use of schools in more than one township. 
— Larrahee^ Suft. 

Change in laxv. The above was a decision Avhen the law required taxes 
to be paid to township treasurers. These taxes are now paid to the county 
treasurer, and he credits the proper township with the amount received. 

4. Co?istitutional. This section is constitutional, 62 Ind. 291. 

[1873, P- 68. Approved and in force March S, 1873.] 

Sec. 4475. Enumeration, where nled. 18. Each trustee shall, 
on or before the first day of May, annually, report to and file with 
the county superintendent of the proper county a copy of his said 
list and enumeration, with his affidavit endorsed thereon, to the 
effect that the same is, to the best of his knowledge and belief, 
full and accurate, and that the enumeration does not include per- 
sons who are less than six nor more than twenty-one years of age. 

[1865, P- 3- Approved and in force March 6, 1865.] 

Sec. 4476. Township in two or more counties — Report. 19. When 
a congressional township is located in two or more counties, the 
proper trustee for each portion thereof in the several counties shall 
report, at the same time and in like manner as provided in the 
last preceding section, to the county superintendent of the county 
in which the congressional township fund of such township is held 
in trust and managed. 

I. Explanation. This section requires that when a congressional township 
is located in two or more counties, the proper trustee for each joortion thereof 
shall make two separate and distinct reports of enumeration : 

1st. The ordinary report of enumeration prescribed by §§ 4472 and 4475. 

2d. A special report of enumeration, consisting of an enumeration of the 
school children living within such part of the divided congressional township 
as is within the limits of his own civil township. This special report should 
be made to the superintendent of the county in which the fund belonging to 
such divided congressional township is managed. In case parts of several con- 
gressional townships lie in a civil towniship the trustee must evidently make as 



625] APPORTIONMENT OF REVENUE. [§§4477 4479 

manv separate special reports to the superintendent of the county which 
manages the funds of the several congressional townships. — Smart, Supt. 



ARTICLE 5— APPORTIONMENT OF REVENUE. 

SEC. SEC. 

4477. To be made semi-annually. 44S4. Paym.ent to counties. 

447S. Reports of countv auditors. 4484a. Payment to counties. 

4479. "W^hen and what county auditor reports. 44S5. Unapportioned balances. 

4450. "When congressional to^vnshlp divided. 4486. County auditor's apportionment. 

4451. Auditor failing to report — Penalty. 44S7. Interest on sinking fund. 

4452. Apportionment, how made to counties. 4487^. Surplus dog-tax fund. 

4453. Printed statement, 44S7i^'- Distribution of dog-tax fund. 

[1873, p. 80. Approved and in force July 7, 1873.] 

Sec. 4477. To be made semi-annually. 109. There shall be two 
apportionments of the school revenue, for tuition made in each 
year by the state superintendent of public instruction — one on 
the fourth Monday in May, and the other on the first day of Jan- 
uary, unless the said day of the month should be Sunday, and, if 
so, on the day following. 

Sec. 4478. Reports of county auditors, no. To enable the super- 
intendent to make said apportionments, and to ascertain the 
amount of said revenue collected and ready for that purpose, the 
auditors of the several counties of the State shall, promptly, after 
making the settlements with the county treasurers of the respec- 
tive counties in April for the amount collected on tax-list, and in. 
December for the amount of delinquent tax collected, make report 
to said superintendent of the precise amount of school revenue 
for tuition collected in their respective counties and ready for 
apportionment and distribution ; which report shall be verified by 
the oath or affirmation of the auditor indorsed thereon. 

Sec. 4479. When and what county auditor reports, in. The first 
of said reports in each year shall not be delayed later than the 
third Monday in May, and the second not later than the twenty- 
fifth day of December. Said reports shall show — 

First. The amount of school tax collected since the last report, 
whether upon the current year's tax-list or delinquent tax. 

Second. The amount of interest collected since the last semi- 
annual report, and the amount, if any, not previously reported, 
upon loans of common school funds, and on any indebtedness 
which is due or payable to said funds, arising from the sale of sem- 
inary property or otherwise. g> 

TJiM. The amount derived from liquor licenses and unclaimed 
fees not previously reported. 

FoitrtJi. The total amount of school revenue thus collected and 
ready for apportionment. 

FiftJi. The income derived from the congressional township 
school fund, mcluding the interest on loans of said fund, and on 
deferred payments for school lands which have been sold, and the 
40 



§§4480—4482] EDUCATION. [626 

rents and profits derived from the leasing or renting of any such 
lands, or otherwise. 

Sixth. The amount of said income from the congressional 
township fund on hand for distribution in parts of the townships in 
the adjacent counties, specifying the amount on hand for each of 
the several counties. 

I. Instructions to atcdztors. ist, When you make your report to the state 
superintendent you give the amounts (if any) due to adjacent counties. At the 
same time you notify the auditors of these counties, specifying the amounts 
due to the several townships. (64480.) Mail all such notices and the report 
on the same day. 2d, Then immediately draw warrants upon your OAvn treas- 
urer in favor of the treasurers of the several adjacent counties i'or the amounts 
respectively due them, and cause your treasurer to remit said am.ounts to said 
counties at the same time that he makes his remittance to the treasurer of state. 
The expense of said remittances must not be paid out of any school revenues. 
3d, The auditor of each county to which such revenue is paid will include it in 
his next distribution (§ 4486), and will notify trustees that it is no longer neces- 
sary for them to go or send for their money to other counties, but that they 
will hereafter draw the whole of their revenues from the treasury of their own 
county, — Bloss^ Supt. 

[1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4480. When congressional township divided. 112. When the 
congressional township lies partly in one county and partly in 
another, the auditor of the county in which the fund of such town- 
ship is managed shall notify the auditor of the county in which 
any portion is situated of the amount due to such portion. 

Sec. 4481. Auditor failing to report — Penalty. 113. On the fail- 
ure of any county auditor to make his said semi-annual report in 
time for said apportionments, his county shall be subject to a 
diminution of one hundred dollars in the next apportionment of 
said revenue by the superintendent. The sum thus withheld may 
be collected, from said auditor, in a suit before a justice of the 
peace, prosecuted in the name of the State, by any person living 
in said county who has children enumerated for school purposes 
for the current year, who is aggrieved by said diminution. Said 
suit shall be commenced within two years from the time when said 
report was due, and not afterward : Provided, That said auditor 
may discharge himself from Hability to such suit by a certificate 
of the postmaster that said report was mailed in due time, together 
with his own affidavit of that fact. 

Sec. 4482. Apportionment, how. made to counties. 114. The 

state superintendent of public instruction shall, on the days fixed 
by section one hundred and nine of this act [§ 4477] for his ap- 
portionment of said revenue in each year, add to the sum total of 
said revenue in readiness in each county for apportionment the 
sum of twenty-five thousand dollars of the State's indebtedness 
to the schools; which addition shall continue to be made at each 
apportionment, until the whole of said indebtedness, together 



627] APPORTIONMENT OF REVENUE. [§§ 4483, 4484 

with six per cent, interest thereon from the time said indebted- 
ness accrued, is paid; the amount of which debt and interest 
shall be settled and adjusted by and between the superintendent 
of public instruction and the auditor of state. And after said 
addition, the superintendent shall apportion the Avhole of said sum 
to the several counties of the State, according to the last enumera- 
tion of children therein, with due reference to the diminutions 
provided for by sections forty-one and one hundred and thirteen 
of this act [§ 4431 and 4481], and without taking into considera- 
tion the revenue derived from the congressional township school 
fund in such apportionment. 

I. State normal scJwoI. Fifteen thousand dollars must also be apportioned 
semi-annually to the state normal school, Acts 1891, p. 311. 

Sec. 4483. Printed statement. 115. Said superintendent shah 
miake out and have printed a statement showing — 

First. The enumeration of children in each county. 

Second. The amount of school revenue ready for apportion- 
ment in each county, and the source from which the same is 
derived, including said addition from the state indebtedness. 

Third. The distributive share thereof apportioned to each 
county. 

He shall file a copy of said statement with the auditor of state 
and treasurer of state, and he shall forward a copy thereof, by 
mail, to each of the county auditors, county superintendents, and 
county treasurers of the State. 

Sec. 4484. Payment to counties. 116. The auditor of state 
shall, at the time of making the semi-annual settlements with the 
several county treasurers, give them each a warrant on the state 
treasury for the distributive share of said revenue apportioned to 
their respective counties, the amount of which shall be retained 
by said treasurers out of the money or revenue in their hands; 
and the balance ascertained to be due to the State, of ordinary 
state revenue or other revenue, together with said warrant, shall 
be paid into the state treasury. The settlement between the re- 
spective county treasurers and the auditor of state, and the draw- 
ing of the warrants for the amounts apportioned to their respective 
counties; the ascertainment of the balance payable into the state 
treasury, and the payment of said balance, and retention by the 
county treasurers of their distributive shares of school revenue, 
according to said apportionment, — shall be concurrent acts, and 
shall be done and performed in such a manner as to effect a com- 
plete semi annual disbursement, from the state treasury to the 
several counties of the State, of all the school revenues then ap- 
portioned to them, and as soon as practicable after the apportion- 
ment is made. 

See ^ 44S4«. 



§§ 44^4^ — 44^6] EDUCATION. [628 

[1S85 S., p. 70. Approved and in force April 13, 18S5.] 

Sec. 4484(3:. Payment of excess. i. The auditor of state shall, 
at the time of making the semi-annual settlements with the sev- 
eral county treasurers, give them each a warrant on the state treas- 
ury for the state school revenues collected in their respective 
counties, the amount of which shall be retained by said treasurers, 
and when the superintendent of public instruction shall have made 
his semi-annual apportionments of school revenue for tuition to 
the several counties of the State, the auditor of state shall draw 
his warrant .upon the state treasury to the respective county treas- 
urers to which there may be due a greater amount than the state 
school revenue which has been collected in said counties, and for 
which a warrant as hereinbefore provided has been issued to them, 
and said county treasurers to whom warrants have been issued at 
the semi-annual settlements for more than their distributive share 
of said school revenue shall, upon notice being given them thereof 
by the auditor of state, forthwith pay such excess into the state 
treasury. [El. Sup. § 1267.] 

This section modifies the provisions of §§ 4484 and 4485. 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4485. TJnapportioned balances. 117. If at any time, from 
any cause whatever, an unapportioned balance of school revenue 
shall appear in the state treasury, other than that which is nomi- 
nally therein at the passage of this act, the superintendent of pub- 
lic instruction shall add said balance to the sum to be appor- 
tioned, and apportion it at the next succeeding apportionment after 
such balance so appears. 

Expla7iation. The unapportioned balance in the treasury consists chiefly 
of moneys paid in by the attorney-general. But at each apportionment the 
state superintendent leaves a small balance, always less than one cent for each 
child enumerated. See § 4484^?. 

[1S73, p. So. Approved and in force March 11, 1S73.] 

Sec. 4486. County auditor's apportionment. 118. The auditor 
of each county shall, semi annually, on the second Monday of June 
and on the last Monday in January, make apportionment of the 
school revenue, to which his county is entitled, to the several 
townships and incorporated towns and cities of the county; which 
apportionment shall be paid to the school treasurer of each town- 
ship and incorporated town and city by the county treasurer. In 
making the said apportionment and distribution thereof, the au- 
ditor shall ascertain the amount of the congressional township 
school revenue belonging to each city, town and township ; and 
shall so apportion the other school revenue as to equalize the 
amount of available school revenue for tuition to each city, town 
and township, as near as may be, according to the enumeration 
of children therein, and report the amount apportioned to the 



629] APPORTIONMENT OF REVENUE. [§ 448/ 

superintendent of public instruction, verified by affidavit: Pjwided, 
Jioiveve}', That in no case shall the income of the congressional 
township school fund belonging to any congressional township, or 
part of such township, be diminished by such apportionment, or 
diverted or distributed to any other township. 

1. Aletliod constitutionaJ. This method of apportionment is according to 
the command of the constitution, ^nd, ^erhaps^ it requires the same principle 
to be applied to the distribution among the counties, 7 Ind. 570; id. 636. 

2. Teachers remedy. When a teacher obtains judgment against a school 
corporation, for services as such, and a return of execution thereon nulla bo?ia^ 
he mav, by proper suit, obtain application of any school revenue in the county 
treasury, belonging to such corporation, to the payment of the judgment, 11 Ind. 
520. 

3. Trustee^s liability. If the township trustee receives funds, under this 
section, which belong to a school town within the township, he may, after 
demand, be compelled, by mandate, to pay the amount to the town — ^Johnson 
vs. Smith, 64 Ind. 275. Trustees do not apportion revenue among districts, 
§ ^A^A^note 2. 

4. Riile for making apportiomnent. Auditors willfindno trouble in adjust- 
ing the apportionment without the labor of giving in detail the specific amount 
of each township's share of the two fvmds, if they will ascertain what the whole 
amount of the school revenues for the county, both common and congressional, 
will give each scholar on a per capita division, and then ascertain whether any 
township's congressional revenue will yield a larger dividend to its children. If 
any township thus has a larger per capita than that of the whole county from 
the combined revenues, exclude the children and congressional revenue of that 
township from the calculation, and distribute to the other corporations on the 
consolidation basis. An example maybe presented as follows: 

Congressional Tp. A — 300 children, ,^375 Congressional revenue, $1.25 per capita. 

'" "• B — 200 " 150 '■'■ " 75 '■'• "• 

C— 84 " 42 " " 50 " 

" " D — 400 "• 100 " " 25 '' " 
"• " E— 250 "■ 

The last four townships have 934 children, and $292 congressional revenue. 
The common school revenue of the county amounts to ,^^875. 50, which, added to 
the $292, vrill make $1,167.50. This will give the last four townships .$1.25 per 
scholar, the same that A receives from her congressional revenue alone, in which 
case the same result is obtained with or wdthout including A's children and 
revenue. But if the common school revenue were only $828.80, the last four 
townships would get only $1,120.80, or $1.20 per scholar. In this case A must 
receive the whole of her own revenue, which must not he diminished by anv 
process of distribution; and the remaining revenues must be distributed among 
the other corporations. — Mills., Supt. 

5. Toivn incorporated tvithiii tozvnship. A town incorporated within a 
towns'nip, after the election of school trustees, is entitled to demand and re- 
ceive from the officer having it in his possession a 'proportion of the school 
fund of the township; and may by mandate compel its payment to it, 64 Ind. 



[1865, p. 139. Approved and in force March 21, 1865.] 

Sec. 4487. Interest on sinking fund. i. All interest accrued or 
accruing on the sinking fund or any other fund held by this State 
for the benefit of the common schools of this State, on and after 
the first day of January, one thousand eight hundred and sixty-five, 
is hereby set apart for distribution as other revenues are distributed, 
for the support of the common schools of this State. 



§ 44^7^1 EDUCATION. [630 



[1885, p. 161. Approved April S, 18S5, and in force July iS, 1S85.] 

Sec. 4487<^. Surplus dog-tax fund. 8. The trustees shall register 
such losses in the order they are reported, which order shall be 
observed in the payment of losses : Provided, That no person shall 
receive pay for sheep killed or maimed by a dog owned, kept or 
harbored by himself: Provided, further, That the dog fund hereto- 
fore collected shall be added to and applied with the fund arising 
under the provisions of this act; and Avhen it shall so occur on the 
first Monday in March of any year in any township that said fund 
shall accumulate to an amount exceeding fifty dollars, over and 
above orders drawn against the same, the surplus aforesaid shall 
be paid and transferred to the county treasury of the county in 
which such township is located, and the fund arising from such 
surplus from the township[s] of the county shall constitute a county 
dog fund, and shall be distributed among the townships of the 
county in which the orders drawn against the dog fund exceed the 
money on hand. This distribution shall be made on the second 
Monday in March, and if the said county dog fund be insufficient 
to pay for all the killed sheep of all the townships, the distribution 
shall be made in the ratio of the orders drawn against the dog fund 
of the townships, and unpaid and unprovided for, which ratio shall 
be gotten from the report of the trustees of the townships made to 
the auditor of the county, which it is hereby directed shall be made 
by each township trustee of the county upon the first Monday in 
March of each year, which report shall show all receipts into the 
dog fund of his township, and all orders drawn against the same ; 
and when it shall occur upon the second Monday in March that 
there is a surplus left of the county dog fund after provisions have 
been made for the payment for all the killed sheep of all the town- 
ships of the county, such surplus shall be distributed for the 
schools of the county in the same manner that interest upon the 
congressional school fund is distributed, [El. Sup. § 454.] 

1. Explanatio7i. It is held by the supreme court in City of South Bend t\.<r. 
jaquith (90 Ind. 495), that under R. S. 1881, § 2651, cities and towns are not 
entitled to any share in the surplus dog fund on the ground that "this section 
in plain and explicit language directs the trustee to transfer the surplus to the 
school revenue of the tozunship." The same language was used in the act of 
March 7, 1883; but in the new section here given the wording is entirely differ- 
ent, directing that "such surplus shall be distributed to the schools of the county 
in the same manner that interest upon the congressional school find is distrib- 
uted.''' The meaning of this requirement is somewhat doubtful. Interest on 
the congressional fund is not distributed among the schools of the county, but 
each township receives the interest upon the amount of the congressional fund 
belonging to itself. The legislative intent may, however, be inferred from pre- 
vious acts to be that such surplus should be added to and distributed with the 
tuition revenue of the county. It will be most convenient if the amount of 
surplus on hand the second Monday in March be reported to the county auditor, 
and by him distributed in the following June. The new law, at any rate, revives 
the right of towns and cities to such/ro rata share in the dog fund (see note 
2 under § 4487^) as they have in the congressional revenue. — Holcombe, Supt. 

2. Distribution — Anticipation. The fund arising from the dog tax should 
not be used exclusively for the support of one school in a township to the neg- 



631] SCHOOLS IN CITIES AND TOWNS. [§§ 4487^, 4488 

lect of all others. It is a fund to Avhich all the schools in the township have an 
equal claim, and it should be apportioned bj the trustee among the schools, 
Avith the other tuition funds. We think it must follow, also, that it should 
await the apportionment of other funds apportioned for tuition before it is 
expended, 47 Ind. 241. 

3. Transfer to school revenue. The township trustees may transfer to the 
school revenue accounts the surplus dog-tax before the August meeting of the 
county commissioners, and embody the amounts in their reports to them and to 
the county superintendent, subject, like all their other accounts, to revision and 
correction by the commissioners. — Holcomhe^ Supt. 

4. See also § 6509^, and § 6329/. 

[1S77, p. 74. Approved and in force March 14, 1S77.] 

Sec. 4487^. Distribution of dog-tax fund. i. All sums of money 
now remaining in the hands of the township trustees, arising from 
surplus dog-tax fund, shall be, upon the taking effect of this act, 
placed to the credit of the tuition fund of such township, and shall 
be expended as other tuition funds of the township are expended. 
The township trustees of the several townships in the State are 
hereby authorized to pay to school trustees of incorporated towns 
or cities their proportion /r(i> rata according to the enumeration for 
school purposes within such township. 

1. Not repealed . The act of 1881 [and hence § 4487^] does not repeal the 
act of March 14, 1877, ^^^ surplus dog-tax must be distributed according to its 
provisions. — Baldivin., Atty. Gen. 

2. Mode of distrihutio7i. The first sentence of this section is superseded by 
§ 4487^, but the latter part is in force and must govern in the distribution of this 
revenue. — Holcombe, Supt. 

In case a township has within its borders an incorporated town or city, the 
trustees of the township must apportion a share of the surplus dog-tax to each 
child enumerated therein, and to each child enumerated in the township outside 
the town or city, /rt? rrt/rt. When the town or city is composed of parts of 
several dilferent townships, each of the trustees of such townships should pay 
over to the town or city such proportion of the surplus dog-tax as the numbei' 
of children in the part of the town or city which lies in his township bears to 
the whole number in the township. The township trustee, in connection with 
the town or city trustees, should estimate the number of children in that part 
of the town or city, unless the enumeration has been taken in such a way that 
accurate information can be given. — Smarts Supt. 



ARTICLE 6— SCHOOLS IN CITIES AND TOWNS. 

SEC. SEC. 

4488. Bonds for school buildings. 4493. Surplus special school revenue, 

4489. Use of proceeds. 44920. Anticipating revenue. 

4490. Special tax. 4492^. Laws repealed. 

4491. Condition before building. 

[1873, p. 60. Approved and in force March 8, 1873.] 

Sec. 4488. Bonds for school buildings, i. Any city or incorpo- 
rated town in this State which shall, by the action of its school 
trustees, have purchased any ground and building or buildings; 
or may hereafter purchase any ground and building or buildings; 
or has commenced, or may hereafter commence, the erection of 
any building or buildings for school purposes ; or which shall 



§44^8] EDUCATION. [632 

have, by its school trustees, contracted any debts for the erection 
of such building or buildings, or the purchase of such ground and 
building or buildings; or such trustees shall not have the neces- 
sary means with which to complete such building or buildings, or 
to pay for the purchase of such ground and building or buildings, 
or pay such debt, — may, on the filing by the school trustees of 
said city or town of a report, under oath, with the common coun- 
cil of such city, or the board of trustees of such town, showing the 
estimated or actual cost of any such ground and building or build- 
ings, or the amount required to complete such building or build- 
ings, or purchase such ground and building or buildings, or the 
amount of such debt, on the passage of an ordinance authorizing 
the same by the common council of said city or the board of 
trustees of such town, issue the bonds of such city or town to an 
amount not exceeding in the aggregate fifty thousand dollars, in 
denominations not less than one hundred nor more than one 
thousand dollars and payable at any place that may be designated 
in the bonds (the principal in not less than one year nor more than 
twenty years after the date of such bonds, and the interest annu- 
ally or semi-annually, as may be therein provided) to provide the 
means wdth which to complete such building or buildings, or to pay 
for the purchase of such ground and building or buildings, and to 
pay such debt. Such common council or board of trustees may, 
from time to time, negotiate and sell as many of such bonds as 
may be necessary for such purpose, in any place and for the best 
price that can be obtained therefor in cash : Provided, That such 
bonds shall not be sold at a price less than ninety-four cents on the 
dollar. 

1. See Williams vs. Albion, 58 Ind. 329. 

2. Petition. A petition of the tax -payers to the board of trustees or com- 
mon council is not necessary to enable the board to levy a tax to complete 
school buildings, 44 Ind. 83. 

3. Constitutional. The above section is constitutional, 44 Ind. 83 ; 86 Ind. 



4. Inju7iction. When the school trustees file Avith the board or common 
council a verified report, showing that as such school trustees they have con- 
tracted for the purchase of real estate on Avhich to erect school buildings, and 
showing the amount of the debt incurred for such realty, and the estimated 
cost of such buildings, and asking the issuance of bonds, such board or council 
may, by ordinance, avithorize the issue and sale of bonds of the citv, equal in 
amount to the cost of such real estate and the estimated cost of such buildings, 
and such board or council can not be enjoined from so doing, 58 Ind. 329. 

5. Basis of valuation. It has been asked whether the town trustees of an 
incorporated town in issuing bonds for a school building in accordance with 
§ 4488 base the issue, as to amount on the value of property in the tovN-n in 
creased by the value of the property of persons transferred to the town for 
school purposes. 

The corporation can not become indebted for any purpose to an amount in 
the aggregate exceeding two per centum in the value of the taxable property 
within such corporation, to be ascertained by the last assessment for state and 
county taxes previous to the incurring of such indebtedness, 6 220. 

Where persons can be better accommodated at the school of an adjoining 
township, or of any incorporated town or city, the trustee of the town or city 



62,3] SCHOOLS IN CITIES AND TOWNS. [§4489 

in which such person resides shall, if such person so request, at the time of 
making the enumeration, transfer them for educational purposes to such town- 
ship, town or city, and notify the trustee of such transfer. Such person so 
transferred shall annually pav to the treasurer of such township, town or city 
(when a tax is levied therein ior the purpose aforesaid) a sum equal to the tax 
levied, computing the same upon the property and poll liable to tax of such per- 
sons in the township, town or city where he resides, according to the valuation 
thereof by the proper assessor (§§ 4473, 4474)^ 

The property of the person transferred to an adjacent township, town or 
city for educational purposes is not assessed by the assessor of the township, 
town or city to which he is transferred, for state and county taxes, but he is 
assessed in the township in which he resides. 

The constitution provides that the value of the taxable property within such 
corporation is to be ascertained by the last assessment for state and county 
taxes. The property of such transferred person does not appear in the last 
assessment of the corporation for state and county purposes to which he is 
transferred, but in the township in which he resides, and consequently the 
propert}-- of such transferred person, residing in another township, can not be 
taken into consideration in determining the amount of property within such 
corporation to which he is transferred, as the basis for issuing said bonds. — 
Hord, Atty. Gen. 

6. Liability of trustees. It is asked Avhether the members of a tovvu board 
or the members of a school board, incur personal liability by issuing and nego- 
tiating school bonds in excess of the constitutional limit. 

Public oi^cers are not personally liable on contracts within the scope of 
their authority and line of duty unless it is apparent that they intended to bind 
themselves personally. 

If a public agent transcends his authority, he may in some cases be rendered 
personally responsible for the consequence of his act. 

If the officers acting officially exceed their authority innocently, under a 
mistake of law in which the other contracting party equally participates with 
equal opportunities of knowledge, and the officers contract with him, and he 
with them, in their official capacity, neither looking to personal liability, the 
officers are not personally liable. — Hord, Atfy. Gen. 

7. By ■vjJiom issued — Constitutional limit. School trustees have no power to 
issue bonds to raise money to build school-houses except by authority of an 
ordinance of the common council or board of civil town trustees. I think the 
constitutional amendment of 1881 (§ 220), limiting the power of municipal cor- 
porations to contract debts over and above two per cent, of their taxables, ap- 
plies to past as well as future debts — that is t > say, if a town is indebted two 
per cent, on its taxables it can incur no farther debt; if indebted one and three- 
fourths per cent., it can incur a farther debt of one-fourth per cent. — Baldwin, 
Atty. Gen. 

Sec. 4489. Use of proceeds. 2. The proceeds of the sales of such 
bonds shall be paid to the said school trustees, to enable them to 
erect or complete such building or buildings and pay such debt. 
But before payment to them, such school trustees shall file with 
the county auditor a bond, payable to the State of Indiana, in a 
sum not less than the full amount of the said money so to be paid 
to them, and with security to be approved by said auditor, con- 
ditioned for the faithful and honest application of such money to 
the purpose for which the same was provided; and such trustees, 
and their surety or sureties, shall be liable to suit on such bond 
for any waste, misapplication, or loss of such money, in the same 
manner as now provided for waste or loss of school revenue. 

Bond of school board. The bond required to be given by the >chool trus- 
tees is additional to those already given by them (§ 444.0 "), and ma\- be a joint 



§ 449^] EDUCATION. [634' 

bond of the three members of the board, equal in amount to the proceeds turned 
over to them, but thev must be severally bound for the whole amount. — S7iiayt, 
Si(J>t. 

[1S75, P' 29. Approved and in force March 11, 1S75.] 

Sec. 4490. Special tax. 3. In addition to levying the tax by- 
cities or incorporated towns for general purposes, now authorized 
by law, the common council of any such cities, and boards of trus- 
tees of any such incorporate towns as shall avail themselves of 
the provisions of this act, are hereby authorized and required to 
levy, annually, a special additional tax, at the same time and in the 
same manner as other taxes of such city or town are levied, suf- 
ficient to pay the interest and principal of said bonds falling due; 
which additional special tax shall be assessed and collected as the 
taxes for state and county revenue are assessed and collected. 
The treasurer of said city or town shall keep accurate account of 
the revenue arising from said special tax, and shall in his reports, 
when required by the city or town authorities, show the amount 
thereof received, the amount disbursed, and the amount thereof, 
if any, remaining delinquent. He shall pay out the same only by 
the authority of the common council of said city or board of trus- 
tees of such town ; and shall permit the same to be applied to no 
other purpose than the payment of the principal and interest of 
such bonds ; and official bonds of city and town treasurers shall 
be construed to cover and include revenue arising from this 
source. Persons residing outside of any such city or town, and 
electing to be transferred to such town or city for educational pur- 
poses, or who shall send their children to the school taught in any 
such building, shall, with their property, be liable to such tax, 
as if they resided in such city or town, on all property owmed 
by said person in the township where such city or town is located : 
Provided, ahuays, That nothing in this act shall be construed to 
prevent the school trustees of such town or city from admitting 
pupils into such schools from outside such city or town, in their 
discretion, upon the payment of tuition therefor, and without sub- 
jecting the property of their parents to such taxation, when such 
schools are not crowded and their admission shall, in no way, in- 
terfere with the progress of the children within such city or town: 
Provided, fiu'ther, That the additional special tax, hereby author- 
ized, shall not, in any one year, exceed fifty cents on any one 
hundred dollars of taxable property and one dollar on each poll. 

1. Section constitutional. The provision subjecting to this tax persons re- 
siding outside the town or city, who, though not transferred, send to the school 
in the building for which the bonds were issued, is not constitutional, 62 Ind. 
291. 

2, Levy and collection. The tax is to be " levied " as other taxes of such 
cit}^ or town are levied, and "assessed and collected" as state and count}' rev- 
enue are assessed and collected. I think, under this law, the levy should be 
made and certified by the municipal authorities, and placed upon the county 
duplicate for collection. I come to this conclusion because, by the act of 1867, 
trustees of civil townships, trustees of towns, and the common councils of 



635] SCHOOLS IN CITIES AND TOWNS. [§§4491,4492 

cities are authorized to levy a special tuition tax, " "wliich tax shall be assessed 
and collected as the taxes for state and county revenue are assessed and col- 
lected.'' (^4469.) This tax must be collected, it would seem, bj the countv 
treasurer, as trustees of civil townships do not collect revenue, and such has 
been the uniform practice. The act under consideration, using the same 
language, and having been passed after the construction mentioned had been 
placed on the act of 1S67, I think it should be held that the act of 1873 I'equires 
the tax to be collected bj the county treasurer. — Woollen, Ally. Gen. 

3. Levy obligatory. It is the duty of trustees to levy annually a special 
additional tax sufficient to pay the interest and principal of bonds issued ibr 
school buildings and falling due, and where it appears that they have failed, 
neglected and refuse to discharge their statutory duty, a writ of mandate is 
the proper legal remedy, 86 Ind. 17. 

4. Admitting non-residenls to schools. The proviso that this statute shall 
not prevent the admission to the particular schools in question of children re- 
siding outside the corporation, on payment of tuition, recognizes and by im- 
plication authorizes the custom of admitting such pupils to all the schools. 
The rights of the children of the corporation must always be considered first, 
and must never be sacrificed for the sake of the tuition money of non-residents. 
— Holcombe, Su_pt. 

5. Location of school-house. K'S> a rule, the school grounds and school build- 
ings of a corporation should be located within its corporate limits; but the 
bonds of such a town, negotiated and sold to procure means for the erection and 
completion of a school-house for the town are not void merely because such 
school buildings are not located within the corporate limits of such town, 86 
Ind. 17. 

6. L^egalizing act. Section four of the above act legalized all bonds previ- 
ously issued for. the purpose of building school-houses; and this section was 
held constitutional, 86 Ind. 17. 

[1879 S., p. 86. Approved an-d in force March 20, 1S79.] 
Sec. 4491. Condition before building, i . Before the school trustees 
of any incorporated town or city in this State shall purchase any 
ground for school purposes, or enter into any contract for the build- 
ing of any school building or buildings, they shall file a statement 
with the trustees of such incorporated town, or common council 
of such city, showing the necessity for such purchase of ground, 
or the erection of such building or buildings, together with an 
estimate of the cost of such ground or building or buildings, and 
the amount of means necessary to be provided to pay for such 
ground or building or buildings. And they shall not purchase any 
ground, or enter into any contract for the building of any school 
building or buildings, until such action be approved by the trustees 
of such incorporated town, or by the common council of such city. 
Provided, however, That there shall be nothing in this act so con- 
strued as to affect any purchase of grounds, or contract made for 
the erection of any building or buildings, for school purposes, 
prior to the taking effect of this act. 

[1879 S., p. 95. Approved March 31, 1S79, and in force May 31, 1S79.] 

Sec. 4492. Surplus special school revenue, i. It shall be the 
duty of the board of school trustees of any city or incorporated 
town in this State to pay over to the common council or board of 
school trustees of such city or town any surplus special school 
revenue in the hands of such school trustees, not necessary to meet 



§§4492^—4493] 



EDUCATION. 



[636 



current expenses ; such excess of the revenue aforesaid to be ap- 
phed for the payment of the interest or principal, or both, of any 
indebtedness incurred under the provisions of the act of March 8, 
1873, authorizing cities and incorporated towns to negotiate and 
sell bonds to procure means to erect and complete unfinished school 
buildings, and to purchase any ground and building for school pur- 
poses, and to pay debts contracted for the erection and purchase 
of buildings and grounds. 

[1889, p. loi. Approved and in force March 5, 1889.] 
Sec. 4492<^. Bonds in cities, i. Boards of school commis- 
sioners in all cities of this State having thirty thousand or more 
inhabitants according to the United States census for the year 
eighteen hundred and seventy, are hereby authorized to prepare, 
issue and sell bonds to secure loans not exceeding in the aggregate, 
at any one time, the sum of two hundred and fifty thousand dol- 
lars, in anticipation of the revenue for purchasing grounds and 
building school-houses, to bear such rate of interest, not exceeding 
six per cent, per annum, and payable at such time within ten years 
from date as the board may determine ; and the money obtained 
as a loan on any such bonds shall be disbursed by the order of said 
board in payment of indebtedness incurred in the purchasing of 
grounds, or building of school-houses, or in refunding any bonds 
or other evidence of indebtedness issued for such purpose. Such 
bonds may be issued in such denominations and in such sums as 
the board of school commissioners may deem to be expedient: 
Provided, That at no time shall the amount of such bonds so issued 
by any such board of school commissioners,^ then outstanding, 
exceed said sum of two hundred and fifty thousand dollars: And 
provided, further, That such bonds shall not be sold for less than 
their par value. [EL Sup. § 1264.] 

Sec. 4492^. Laws repealed. 2. All laws and parts of laws 
inconsistent herewith are hereby repealed. [El. Sup. § 1265.] 



ARTICLE 7— SCHOOLS AND SCHOOL-HOUSES. 



SEC. 

4493- 
4494. 

4495- 
4496. 
4496«. 



Bible. 

Uniformity as to time — Numbering. 
Calendar.' 
Colored children. 
Indigent children. 
4496/;. Appropriation for indigent children, 

4497. Branches taught. 
4497<7. Kindergartens. 
44g7Z'. Night schools. 
4497f. Who may attend, 
4497f/. Manual training schools. 
4497^. Teachers — Regulations. 
4497/- Tax levy. 

4498. Voters' meeting — School director. 

4499. Other meetings — Powers. 

4500. Petition for school-house. 
4500a. Doors must swing outward. 

4501. Teachers, employment and dismissal. 



SEC. 

4502. 
4503- 
4504- 
4505- 
4506. 

4507- 
4508. 
4509. 
4510- 
451 1- 
4512. 
4513- 
4514- 
4515- 
4516. 

4517- 
4518. 

4519- 



Special examination. 

Director's duties. 

He has charge of school-house. 

Visits school — May exclude pupils. 

Appeal to trustee. 

Insulting teacher. 

Title of "school property. 

Use of school-house. 

Use of school-house. 

School-house, Avhen sold. 

School-house for several ■to^vnships. 

Cost of erecting. 

Donations and bequests. 

oMajority of voters. 

Sale of'honds. 

Site for school-house — imminent domai- 

Appraisers. 

Appraisement — Payment. 



[1865, p. 3. Approved and in force March 6, 1S65.] 

Sec. 4493. Bible. 167. The Bible shall not be excluded from 
the pubHc schools of the State. 



6S7~\ BIBLE AND SCHOOL TERM. [§ 4494 

1. Ji'oic. The Bible, without note or comment, is installed in the common 
schools of Indiana. Its continviance as the moral class-book in these nurseries 
ot" her future citizens will as surely mark the period of her prosperity and grace 
the zenith of her glory, as its exclusion would prove the precursor of her de- 
cline, the herald of her shame. — Mills, Suft. 

2. Teacho' independent. Neither the examiner nor the trustee should ever 
inquire into the peculiar religious belief of a teacher, yet an examiner shovild 
not license an immoral person, nor one who is a scoffer at the teachings of the 
Bible and things sacred. — Fletcher, Supt. 

Our law, therefore, wisely leaves the whole matter of Bible reading and 
prayers with the good judgment and conscience of the teachers. To obligate 
them by contract to read the sacred scriptures and hold prayers in their schools 
would be in exceedingly bad taste, if not sacrilegious ; to refuse them the right, 
when they, in good faith and conscience, desire to do so, would be the very 
worst of tyranny. — Hopkins, Sicpt. 

3. Decisiojts. Since some of the above notes were written, several decisions 
of the courts have been made upon the subject of reading the Bible in the public 
schools, which we proceed to note. Thus it has teen decided that a school 
board could require the reading of the Bible, and expel a pupil who retused to 
do so, even though such child was a Catholic and declined to read because it 
was not permitted to read the Douay version, but expressing a willingness to 
read that version, 38 Me. 379, S. C. 61 Am. Dec. 256. So a rule requiring that 
school be opened each morning with reading from the Bible and prayer, and 
that during the prayer each scholar should bow the head, unless the parent re- 
quested that he might be excused from so doing, is valid ; and a pupil may be 
expelled who refuses to comply with the rule, his parents declining to request 
that he be excused from compliance therewith, 12 Allen 127. In Ohio it was 
held that aboard of education, no statute prohibiting it, could prohibit the read- 
ing of the Bible and the teaching of the precepts of Christianity in the public 
schools, 23 Ohio St. 211, S. C. 13 Am, Rep. 235. Under a provision that " the 
Bible shall not be excluded from any school or institution in this State, nor shall 
anv pupil be required to read it contrary to the wishes of his parent or guard- 
ian," it was held in Iowa that it w^as a matter of individual option with school 
teachers as to whether they Avill use the Bible in school or not, and such use 
was not prohibited by the state constitution, 64 la. 367, S. C. 24 Amer. L. Reg. 
252 ; 52 Amer. Rep. 444. In Wisconsin it has been held that the Bible can not 
be read in the public schools, though unaccompanied by any comment; for its 
stated reading is "worship," within the constitutional prohibition that no man 
shall be compelled to attend, erect, or support any place of public worship, or 
raaintain any ministry, against his consent. Religion, as a s^'stem and not as a 
natural law, can not there be taught in the common schools, but morality and 
good conduct may be inculcated, 76 Wis. 117 ; S. C.44 N. W. Rep. 967, 29 Amer. 
L. Reg. 286. Yet it has also been held that a school committee could adopt a 
rule requiring all pupils in the public school to learn the ten commandments, 
and repeat them once a week; and such a rule was nbt a violation of the con- 
stitutional provision which secures to the citizen liberty of conscience and of 
worship, 7 Amer. L. Reg. (O. S.) 417. 

4. Irreconcilable. It is sufficient to say that these various decisions are 
in irreconcilable conflict with each other. 

Sec. 4494. Uniformity as to time — Numbering, ii. All schools in 
a township shall be taught an equal length of time, as nearly as the 
same can be done, without regard to the diversity in the number 
of pupils at the several schools, or the cost of the school ; and each 
of said schools shall be numbered, by the proper trustee, as School 
No. — . 

I. Equality of term. All the schools in the township should, if possible, 
begin and close at the same time. The law does not require that an equal 
amount of money should be spent in each district. Differences in the number 
of scholars may require different prices to be paid for teaching different schools. 



§§4495» 4496] EDUCATION. [638 

but all must be taught an equal length of time. — Larrahce, Supt. The statute 
only requires the schools in the townships to be taught an equal length of time, 
as nearlj as the same can be done, 80 Ind. 276. See also 47 Ind. 241. 

2. Revenue not apfortioned. Under the late law [of 1855] the director 
employed the teacher. To enable him to do this, the trustee was required to 
apportion the school revenue of his township to the several schools thereof in 
such a manner as to produce, as nearly as practicable, equality in the length of 
the schools. Under the present law the trustee can not apportion the money so 
as to produce this equality before the beginning of the schools, when he will 
know the cost of each, and can determine the term for which they can be taught 
for the money on hand. — Fletcher^ Supt. 
^ See § 4499, note 3. 

Sec. 4495. Calendar. 163. A school term of three months shall 
be sixty days, a school month twenty days, and a school week five 
days. 

[1877, p. 124. Approved and in force March 5, 1877.] 

Sec. 4496. Colored children. 3. The trustee or trustees of such 
township, town, or city may organize the colored children into 
separate schools of the township, town, or city, having all the 
rights, privileges, and advantages of all other schools of the town- 
ship, town, or city: Provided, That in case there may not be pro- 
vided separate schools for the colored children, then such colored 
children shall be allowed to attend the public schools with white 
children : Provided, further, That when any child attending such 
colored school shall, on examination and certificate of his or her 
teacher, show to the trustee or trustees of any township, town or 
city that he or she has made sufficient advancement to be placed 
in a higher grade than that afforded by such colored school, he or 
she shall be entitled to enter the school provided for white children 
of a like grade, and no distinction shall therein be made on account 
of race or color of such colored child. 

1, State'' s po-Mer — Separate schools. The system of common schools in tliis 
State has its origin in, and is provided for by, the constitution and laws of the 
State. It is purely a domestic institution, and subject to the exclusive control 
of the constituted authorities of the State. The Federal constitution does not 
provide for any general system of education to be conducted and controlled by 
the Federal government, nor does it vest in the congress any power to exercise 
a general or special supervision over the States on the subject of education. 
The classification of pupils on the basis of race or color, and their education in 
separate schools, involve questions of domestic policy which are within the 
legislative discretion and control, and does not amount to an exclusion of either 
class; but since the ratification of the fourteenth amendment of the Federal 
constitution no system of schools would be general, uniform, and equally open 
to all, as required by our own constitution (viii i), which did not provide for 
the education of the colored children, 48 Ind. 327, See § 4472, note 9; 93 Ind. 

' 303; 7 Nev. 342, S. C. 8 Am. Rep. 713; 48 Cal.36; 21 Ohio St. 198; 93 N. Y. 
438; 3 Woods, 177; 18 Mich. 400; 24 la. 266; 41 la. 689; 71 III.3S3; loi 111. 308; 
46 N. J. L. 76 ; loi Ind. 490; 83 Ky. 49; 94 N. C. 700 ; 16 Fed. Rep. 297. 

2. Dista7ice must be reasonable. The legislature evidently intended by the 
above section that the colored children should have a right to go to the public 
schools when in operation, if they desired; and that they should go to separate 
schools when they were reasonably convenient, but when not convenient, then 
to the white schools. What is reasonable, under the circumstances, is largely 
with the trustee, and I could lay down no certain rule by which he should be 



639] POOR CHILDREN. [§§ 44g6a, 4496^ 

governed. A colored child could be required to go a reasonable distance to 
attend a colored school, although there might be white schools much closer, but 
when the reasonable distance has been reached, he can not be forced to go 
beyond. — Woollcji, Atty. Geii. A pupil who is compelled to go from the extreme 
corner of a township to the center of that township to obtain school privileges, 
is practically debarred from such privileges. Such a construction of the above 
act is evidently in accordance with neither the spirit nor the letter of the law. 
Hence, I must conclude that it is the intent of the law that not only a school or 
schools must be provided, but that such schbol must be located that the distance 
such colored pupil must travel to reach it shall not be unreasonable, and that, in 
case this is not done, the colored children must be admitted to the white schools. 
In determining the reasonableness of tlie distance which a pupil may be com- 
pelled to travel to school, the age and condition of the pupil must be taken into 
consideration. — Bloss, Supt. 

3. Privileges equal. I think that the expression " all the rights, privileges, 
and advantages of other schools" clearly makes it the duty of trustees to fur- 
nish colored children, as far as may be possible, school privileges for an equal 
length of time with the v/hites. I do not see how the consent of the colored 
people themselves to any other arrangement can relieve the trustees of this 
duty to the colored children. It is the duty of the State to give them equal 
educational advantages with white children, whether they demand them or 
not. — Holco?Jtbe, Supt. 

4. Discretion. The discretion given by this section to school officers to 
establish separate schools for colored children can not be controlled by the 
courts, in the absence of malice or corruption, nor can the courts compel the 
admission of a child to a school already overcrowded, nor consider the com- 
pentency of teachers, nor the necessity of graded schools, nor determine the 
grade to which a child is qualified to be admitted, 93 Ind. 303 ; 85 Ind. 213. 

[1881 S., p. 580. Approved and in force April 7, 1881.] 

Sec. 4496<^. Indigent children. 3. It shall be the duty of each 
matron selected and appointed under the provisions of this act to 
provide the children committed to her care and custody with suit- 
able and sufficient food and clothing, and to give them proper 
home training and education ; and, in furtherance of this object she 
shall send to the common schools in the districts most convenient 
to the place where such children are kept, where they shall be re- 
ceived and taught at least three months in each year, all of such 
children under her care as are of the proper age to be admitted 
into such schools, and to give personal attention to the instruction 
of those not of sufficient age to be received into such schools. It 
shall further be her duty, at all proper times when such children 
are not in school nor engaged in study, to engage them in some 
active labor suited to their age and strength, to the end that they 
may become useful, industrious and self-supporting citizens. [R. 
S. 1881, § 6105.] 

School privileges — Enumeration. Such children are entitled to school priv- 
ileges in the corporation in which the statute (R. S. 1881, § 6105) establishes 
their home, and should be enumerated accordingly. — Holcomhe, Supt. 

[18S5, p. 125. Approved April 2, 1885, and in force July iS, 1SS5.] 

Sec. 4496^. Appropriations for indigent children, i. The boards 
of commissioners in the several counties of this State are hereby 
authorized to make suitable appropriations for the education, in 
the common school branches of learning, of the pauper children 



§ 4497J EDUCATION. [640 

of their respective counties whenever, in the judgment of the board 
of commissioners justice to the school district or districts wherein 
such pauper children are kept demands such assistance ; and all 
expenditures, authorized by this act, shall be made and paid out 
of the county treasury, on warrants drawn by the auditor on the 
order of the board of commissioners : Provided, That where there 
is no provision for a matron, or an insufficient number of children 
to require the services of a matron or the establishment of a sepa- 
rate school for the inmates of such asylums, it shall be the duty 
of the board of commissioners to require the superintendent of 
such asylum to send such children to the township schools. [El. 
Sup. § 1304.] 

Note. Section 4496^ requires the matron, whenever such a person is em- 
ployed, to send all the indigent children of school age who are in her charge 
to the common schools in the districts most convenient. This additional sec- 
tion requires the superintendent of the county asylum to send such children to 
school in like manner. All the indigent children maintained by the county 
are thus assigned to the public schools. They should, therefore, be enumerated 
by the school corporation in which they are maintained, so that the corporation 
may receive the amount of common school revenue apportioned for them by the 
county auditor. But as such children represent no property from which the 
corporation may derive any revenue from local taxation, the county commis- 
sioners are empowered, and it is their dutj^, to appropriate such amounts as 
may seem to them just for the share of such children in the special school and 
local tuition revenues. — Holconibc, Supt. 

[1S69, p. 40. Approved May 5, 1869, and in force August 16, 1869.] 

Sec. 4497. Branches taught. 147. The common schools of the 
State shall be taught in the English language; and the trustee 
shall provide to have taught in them orthography, reading, wTit- 
ing, arithmetic, geography, English grammar, physiology, history 
of the United States, and good behavior, and such other branches 
of learning and other languages as the advancement of the pupils 
may require and the truste.e3 from time to time direct. And 
whenever the parents or guardians of twenty- five or more children 
in attendance at any school of a township, town, or city shall so 
demand, it shall be the duty of the school trustee or trustees of 
said township, town, or city to procure efficient teachers and 
introduce the German language, as a branch of study, into such 
schools; and the tuition in said schools shall be without charge : 
Provided, Such demand is niade before the teacher for said district 
is employed. 

I. Trustee's duty — Mandate. In a circuit court the plaintiiT asked for a 
writ of mandate to compel the defendants to have their children taught algebra 
and Latin in an ordinary district school. The court issued the mandate in re- 
gard to algebra, and refused it in regard to Latin, solely on the grovmd that the 
plaintiffs had not made a suitable demand on the trustee in regard to that study, 
holding that it was his duty to cause Latin to be taught, if the attainments of 
the pupils required it, and that he could be compelled to do so by suitable pro- 
ceedings. The court argued that sections 4497 and 4499 Avere not inconsistent 
with each other. The intent of the legislature was that " other branches of 
learning and other languages" should be taught in the public schools when- 
ever the pupils therein Avere sufncientlv advanced in the elementarv branches, 



641] BRANCHES TAUGHT. [§ 449/ 

and in order that the legislative intent might he made effective two modes of 
acting were provided for: (i) The voters were empowered to act. But, lest 
from anv cause they failed in their duty and lel't those entitled to the benefits 
of the public schools without a remedy, then (2) The school trustees should 
act, and, they being public officers, could be compelled by the courts to per- 
form their duty in case they neglected to do the same. — Grubbs vs. Williams, 
Johnson Co., iSSo. 

2. Additional studies. It has been asked whether it is the duty of school 
trustees to provide a course of study adapted to the preparation of pupils for 
college. The question should be answered in the affirmative. It is fair to 
assume that the trustees must provide suitable instruction for all the children 
who have a right to attend school; that is, they must afford them such instruc- 
tion as their attainments demand. If a child has mastered all the primary 
branches, and, being less than twenty-one years of age, still desires to attend 
school, the trustees must provide suitable instruction for him. It is not reason- 
able to expect him to spend further time on branches which he has mastered. 
The fact that the law permits children to attend school till they are twenty-one 
years of age is presumptive proof that the trustees may be required to furnish 
such instruction as is suitable to their attainments till they reach that age. I 
think the argument here adduced equally applicable to trustees in cities as to 
those in townships, as the language of the statute applies to both alike. — Smarts 
Sup. 

3. Order of studies. The school law provides that instruction shall be im- 
parted in certain studies, the German language under certain circumstances 
being included in the list. The time at which these studies shall be com- 
menced, the order in v>-hich they shall be taken up, and the length of time de- 
voted to each, are matters Avhich are and must be left to the trustee or school 
board. It is their duty to act upon a regular petition, but to act in the way 
which in their discretion seems most practicable. — Holcornbc, Supt. 

4. Teacher's contract. If the trustee had employed a teacher for the term, 
or school year, before the patrons of the district petitioned him to have the 
German language taught in the school, then he was justified in paying no 
attention to their petition. — Baldivin., Aity. Gen. 

5. Gerjuan a branch of study. The plain, requirement of the law is that 
the common schools shall be taught in English, and that under certain circum- 
stances the German language may be introduced as a branch of study. It is 
not contemplated that German shall be used as the medium of communication 
and instruction in the schools. That would be at variance w^ith the purpose of 
our schools. But in the midst of a dense foreign population it may be impossi- 
ble to conduct a school in English. The law never requires the impossible. 
But it is the duty of officials and citizens to conform to the law in all respects 
as nearly as circumstances permit. Now, the German children of Indiana are 
as much entitled to school privileges as any others, and it is often necessary 
that they receive instruction through the medium of their native language. 
But when such is the case the teacher should be required to teach the children 
the English language as rapidly as it can be done, and to change the language 
of the school as soon as possible from German to English, making the latter the 
medium of communication. It follows that no person should be employed as 
a teacher of German children who is not able to pursue this course, for which 
the ability to speak English is essential. Indeed, so important is a thorough 
knowledge of English to such teachers that they ought to be able to write their 
examination in that language, and there is no reason for exempting them from 
examination in any of the eight branches. — Holconibe^ Supt. 

6. When and luhere German must be taurht. It is the duty of the school 
trustees (and of the school commissioners in the city of Indianapolis) to intro- 
duce the German language as a branch of study into " anv school " whenever 
the parents or guardians of twenty-five children in attendance demand it; but 
not necessarily into every school-room of such school ; and they may be com- 
pelled to do so by mandate. Introducing German into the last years of a 
graded school is not a compliance w^th the statute. When a proper demand 
has been made, all the children attending that school are entitled to study Ger- 
man, if there are funds sufficient to secure a proper teacher; and the school 

41 



§§ 4497^ — -1497^] education. [642 

trustees can not evade the duty imposed upon them, to have this language 
tauglit, by exhausting the school funds in having taught studies that are plainly 
optional, such as music, botany, Latin, and the like. Board of Commissioners 
7/'5. State ex rel. Sander, 27 N. E. Rep. 61. 

7. Music. A rule, prescribed by the superintendent of the free graded 
schools of a city, with the sanction of the trustees, that the pupils in the high 
school department shall at stated intervals employ a certain period of time in 
the study and practice of music, for which they shall provide themselves with 
a prescribed book, is an exercise of discretionary power conferred by law, and 
unless the regulation is shown to be unreasonable, or a satisfactory excuse for 
failing to comply therewith is given, mandamus will not lie to compel the 
school authorities to re-admit a pupil who has been suspended for disobedience 
thereof, 108 Ind, 31; 44 la. 564. 



[1SS9, p. 355, Approved March 9, 1SS9, and in force May 10, 1889.] 

Sec. 4497^3;. Kindergartens, i. In addition to other grades or 
departments now established in the common schools of the State, 
the board of trustees of any incorporated town or city are hereby 
empowered by law to establish, in connection with the common 
schools of such incorporated town or city, a kindergarten or kin- 
dergartens for the instruction of children between the ages of four 
and six, to be paid for in the same manner as other grades and 
departments now established in the com.mon schools of such incor- 
porated town or city: Provided, hozvever, That no money accruing 
to such incorporated town or city from the ''school revenue for 
tuition fund" of the State shall be used to defray the tuition and 
other expenses of such kindergarten ; but the same may be de- 
frayed from the local tax for tuition and the special school revenue 
of said incorporated town or city. [El. Sup. § 1281.] 



[1889, p. 1S7. Approved March 6, 1SS9, and ?n force May 10, 1889.] 

Sec. 4497^. Night schools, i. In all cities having a population 
of three thousand, or more, according to the census of 1880, the 
school trustees of such cities shall keep and maintain a night school, 
between the hours of seven and nine and a half o'clock p. m., dur- 
ing the regular school terms as a part of the systems of common 
schools whenever twenty or more inhabitants of such city having 
children between the ages of fourteen and twenty-one years of age, 
or persons over the age of twenty-one years of age, and who, by 
reason of their circumstances, are compelled to be employed or 
have their children employed during the school days to aid in the 
support of such families who desire to and who shall attend such 
school, shall petition such school trustee so to do. [El. Sup. § 
1282.] 

Sec. 4497^. Who may attend. 2. All persons between the ages 
of fourteen and thirty, who are actually engaged in business or at 
labor during the day, shall be permitted to attend such school. 
[El. Sup. § 1283.] 



643] TRAINING SCHOOLS. [g§ 449/(3^ — 449^ 

[1891, p. 348. Approved and in force March 7, 1891.] 

Sec. 4497<^. Manual training schools, i. In all cities of the State 
of Indiana having a population of one hundred thousand or over, 
as shown by any census taken by lawful authority, it shall be law- 
ful for the board of school commissioners, or other school authori- 
ties, having charge and management of the common schools of said 
city to establish in connection with and as part of the system of 
common schools therein, a system of industrial "or manual training 
and education, wherein shall be taught the practical use of tools 
and mechanical implements, the elementary principles of mechan- 
ical construction and mechanical drawing. 

Sec. 4497^. Teachers — Eegulations. 2. Such board cf school 
commissioners, or other school authorities, upon establishing such 
system of manual or industrial training and education, shall employ 
competent instruction in the various subjects to be taught, and 
establish such general rules and regulations for the admission of 
pupils and the conduct of the schools wherein the same shall be 
taught, as in their judgment will produce the best results, and give 
instruction to the largest number of pupils practicable. They may 
provide for such instruction in separate rooms or separate build- 
ings, as in their judgment may be most advantageous. 

Sec. 4497/! Tax levy. 3. Any such board of school commis- 
sioners, or other school authorities, having decided to establish 
such system of industrial or manual training, shall have authority, 
in addition to all other taxes now authorized to be levied, to levy 
a tax of not exceeding five cents on each one hundred dollars of 
property liable for taxation for school purposes, to be levied and 
collected as other taxes for school purposes are levied and collect- 
ed, for the purpose of purchasirfg grounds and erecting buildings, or 
for renting buildings, wherein such instruction shall be given, the 
purchase of all necessary tools, implements and apparatus, and for 
the payment of instructors, and other expenses incident to the 
maintenance thereof: Provided, That no portion of the taxes so 
levied and collected shall be applied to any other purpose. 

[1865; p, 3. Approved and in force March 6, 1S65.I 

Sec. 4498 Voters* meeting — School director 25. The voters 
shall meet, annually, on the first Saturday in October, and elect 
one of their number director of such school; who shall, before 
entering upon duty, take an oath faithfully to discharge the same. 
The director so elected shall, within ten days after said election, 
notify the trustee of his election ; and, in case of failure to elect, 
the trustee shall forthwith appoint a director of said school. But 
any director so appointed may be removed, upon a petition ot 
three-fourths of the persons attached to said school who are enti- 
tled to vote at school meetings, 



§ 4499] EDUCATION. [644 

1, Voters at school meetings. Voters at the school meetings of a district 
are all tax-payers, male and female, except married women and minors, who 
have been listed as parents, guardians, or heads of families, and attached to 
such district. Tax-pajers are those persons who are liable to pay taxes, either 
poll or upon property. Any voter at the school meeting [a woman, if unmar- 
ried] is eligible to the office of director. — Buskirk, Atty. Gen. 

Transferred persons are voters in the district to which they are attached, 
h 4473- 

2, The director. The selection of a director should be a matter of great 
care. He receives no pay for his services, and should therefore be one whose 
interest in the cause of education would lead him to be a frequent visitor of the 
school and whose knowledge of the wants of the school-room is such that he 
will see that it is provided with all that will add to the comfort and convenience 
of the teacher and the scholars. — Fletcher., Supt. 

If the person elected director refuses to serve, the old director holds over, 
and if he refuse to hold over, or if at any time the director dies or resigns, r 
meeting should be called to fill the vacancy. (§4499.) The trustee can fill a 
vacancy only when it is caused by failure of the annual meeting to elect. A 
person elected can not be removed upon petition; but a person appointed must 
be removed Avhen the demand is properly made. — Bloss, Supt. 

3, Cities. This section does not apply to cities nor to towns, 42 Ind. 200. 

[1S73, p. 68. Approved and in force March S, 1S73.] 

Sec. 4499. Other meetings — Powers. 26. The voters at school 
meetings may hold other school meetings at any time, upon the 
call of the director or any five voters. Five days' notice shall be 
given of such meeting, by posting notices in five public places in 
the vicinity; but no meeting shall be illegal for want of such 
notice, in the absence of fraud; and the legality of such proceed- 
ings, if called in question, shall be determined by the trustee of 
the township, subject to an appeal to the county superintendent, 
vvhose decision shall be final. Such school meetings shall have 
power to determine what branches, in addition to those mentioned 
in section thirty-four of this act [§ 4425], they desire shall be taught 
in such school, and the time at which such school shall be taught : 
Provided, Jioivever, That the tuitiort revenue apportioned to the 
school shall be expended within the school year for which it was 
apportioned : Provided, fui'ther, That such school year shall begin 
on the first Monday of July. Such school meetings shall likewise 
have the power to fill vacancies that may occur in the office of 
director; to direct such repairs as they may deem necessary in 
their school-house; to petition the township trustee for the re- 
moval of their school-house to a more convenient location, for the 
erection of a new one, or the sale of an old one and the lands be- 
longing thereto, and upon any other subject connected therewith ; 
and at such meetings all tax-payers of the district shall be entitled 
to vote except married women and minors: Provided, That noth- 
ing herein contained shall prevent the trustee from exercising a 
sound discretion as to the propriety or expediency of making such 
repairs, removing or erecting school-houses, and the cost thereof. 

1. School meetings. The machinery of school meetings and school direct- 
ors is unprovided for and unknown in cities and towns, 42 Ind. 206. 

2. On determination of branches see § 4497 and notes; on filling vacancies 
"iee ^ 4498, note 2. 



645] SCHOOL MEETINGS. [§4499 

3. Apportio7i7n€nt. The apportionment here mentioned is not an appor- 
tionment in the strict sense in which the term is used when referring to that 
made to tlie counties by the superintendent of public instruction, and that made 
to cities, towns, and townships by the county auditor; but merely means an 
informal estimate by the trustees of the amount of money needed for each 
school or district. ("§4494,7^0/^2.) A district is not a corporation, and does 
not acquire a right to any definite share of the revenue, which belongs to the 
township as a whole. If, therefore, a teacher .terminates his engagement so 
near the close of a term that it is inexpedient to employ another person to com- 
plete the term, the money designed by the trvistee for that school remains in his 
hands, to be applied to payment of expenses of the other schools in his corpora- 
tion, and that part of it derived from the tuition revenue must be expended 
within the school year. — Holcombe, Supt. 

4. Location of scliool-Jionse — Appeal. The action of a school meeting, with 
reference to the erection, repair or removal of a school-house, etc., has only the 
force of a request, and therefore never binds the trustee to any course of action. 
— Smart, Supt. 

A township trustee can not by mandate be required to locate and build a 
school-house on land that does not belong to the township, notwithstanding the 
county examiner, on an appeal from his decision, has rendered a judgment re- 
quiring him to erect a school-house on said land. It is not enough that a peti- 
tion by certain inhabitants of the proper school district to the trustee, praying 
for such location and building, states that the land will be deeded to the town- 
ship on the acceptance of the location by the trustee and his order to build, 44 
Ind. 323. See § 4517-4519; 90 Ind. 123. 

5. Appeal — Trustee'' s discretion. The decision of the exam.iner is, doubt- 
less, final so far as the particular case before him is concerned. But when the 
examiner, upon a case appealed to him, has established the location of a school- 
house, is that location to be I'orever thereafter permanent? Is there no power 
left in the trustee, for it must be in him if in any one, to subsequently change 
the location, in order to meet the varying wants of the district.^ We must hold 
that the location thus made by the examiner shall forever remain unalterably 
fixed, or that it may be subsequently changed by the trustee. If it may be 
changed by the trustee at all, it may be done at any time after the action of the 
examiner. Mere lapse of time, whether long or short, can not affect the ques- 
tion. As before observed, we think it clear that the trustee caii not make the 
change. — Smart, Supt. See § 4537. 

6. Mandate. Where the county superintendent reversed the decision of the 
trustee and granted the prayer of a petition to locate a school-house at a certain 
place, it was held that such trustee might be compelled by mandate to build it at 
that place, 21 Ind. 317; but this decision was practically overruled, although not 
referred to, by a latter decision, where the following decision was made: On 
appeal, a county superintendent reversed the decision of a township trustee, 
locating a school house. Again, on appeal, he reversed another decision by 
such trustee, refusing to locate the school-house at a place designated by the 
superintendent in his first reversal. Thereupon the trustee located the same at 
an entirely difterent place, but near where he had first located it. It was decided 
that an injunction preventing such location would not lie; and also that a 
county superintendent can not make such location, and that even his decision, 
on appeal, against a location, is final only for the time being, 67 Ind. 397. See 
7iote 7. 

7. Abolishitig school district — Furjiiture — Private school-Jiouse. A trustee 
has no authority to provide furniture for a room for 'school purposes, or employ 
teachers for service therein, unless such room is owned or leased by the school 
township; and even if the county superintendent, on appeal, direct him to do 
so, he may properly disobey the order, and mandate will not lie to compel him 
to obey it. After a trustee has, on appeal, been ordered by the county superin- 
tendent to provide furniture for the school-house of a district, he may at once 
abolish the district and provide proper school facilities for the people thereof 
in other districts, and then disregard the order of the superintendent, 90 Ind. 
123. See § 4444, note 9. 

8. See § 3333, subdiv. 17. 



§:§ 4500 — 450 1] EDUCATION. [646 

[1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4500. Estimate of expenses. 27. When such meetings shall 
petition the trustee in regard to repairs, removal, or erection of a 
school-house, they shall also furnish to such trustee an estimate of 
the probable cost of such repairs, removal, or erection. 

Petition of patr-ons. A petition for the location, etc., of a school-house 
ma}' be signed and presented to the trustee, and an appeal taken therefrom, 
althoup^h such petition did not originate, nor was It signed, at a school meeting, 
21 Ind. 317. 

[1891, p. III. Approved and in force March 5, 1891.] 

Sec. 4500<3;, Boors must swing outward, i. Whoever, being the 
owner, manager, lessee, trustee, or person having the charge of 
any theatre, opera-house, museum, college, seminary, church, 
school-house, or other public building, refuses or neglects to cause 
all the doors thereof, constructed for the purpose of ingress and 
egress, whether inner or outer doors, to be so hung that the same 
shall swing outwardly, shall be fined in any sum not exceeding 
one thousand dollars nor less than ten dollars, to which may be 
added imprisonment in the county jail for any period not exceed- 
ing six months : Provided, That this section shall not apply to the 
outer doors of one-story churches and school-houses. 

I. Amending § 2155 of R. S. 18S1. 

[1883, p. 30. Approved and in force February 27, 1883.] 

Sec. 4501. Teachers, employment and dismissal. 28. Trustees 
shall employ no person to teach in any of the common schools of 
the State of Indiana, unless such person shall have a license to 
teach, issued from the proper state or county authority, and in full 
force at the date of the employment. Any teacher who shall 
commence teaching any such school without a license, shall forfeit 
all claim to compensation out of the school revenue for tuition for 
the time he or she teaches without such license ; but if a teacher's 
license shall expire by its own limitation within a term of employ- 
ment, such teacher may complete such term of employment within 
the then current school year. The said trustee shall not employ 
any teacher whom a majority of those entitled to vote at school 
meetings have decided, at any regular school meeting, they do not 
wish employed ; and at any time after the commencement of any 
school, if a majority of such voters petition such trustee that they 
wish the teacher thereof dismissed, such trustee shall dismiss 
such teacher, but only upon due notice, and upon good cause 
shown ; but such teacher shall be entitled to pay for services ren- 
dered. [El. Sup. § 1277.] 

I. License essential. A valid contract for the teaching of a public school 
can not be made bv a trustee Avith one who, at the time, has no license to teach 
in the county, and the subsequent procurement of a license does not validate 
the contract, 79 Ind. 575. And a person can neither recover compensation for 
services rendered as teacher, nor damages for breach of contract for such ser- 
vices, unless he were licensed to teach as prescribed by the statutes, 75 Ind. 118. 



647] EMPLOYMENT OF TEACHERS. [§ 45 01 

See also 26 id. 337, and 69 id. So. A contract with a teacher for " good wages " 
IS too indefinite to be enlorced by the courts, 26 N. E. Rep. 6S6. 

2. Liabilities of trustees. If a trustee employs or permits to begin teach- 
ing in a public school any person uho has not a valid license as required by 
law, the trustee will be liable on his bond for the misapplication of any school 
reveniie paid to such unlicensed person ; and the county superintendent or any 
interested citizen m.ay bring an action against the trustee to recover for the cor- 
poration the amount so mxisapplied. — HoIcomln\ Siipt. 

If the father or guardian of a minor employed to teach has given him what 
is popularly called " his time," the minor can sue for and recover the value of 
his services, and the trustee can pay him the monej^ earned without fear of 
having to pay it to such father or guardian. But if the father or guardian has 
not given him "his time," then only the father or guardian is entitled to 
receive pay for the services rendered, and either of them is entitled to sue for 
the same. In all cases, before payment is made, require the father or guardian 
to give a receipt, or else require him to consent in writing to the payment to 
the minor. — Baldvjin.^ Atty. Gen. 

3. Teachers'' Contracts — Actions. A teacher contracts with a school town- 
ship through its trustee, and although the trustee squanders the township funds 
and his bond is worthless, yet the township is liable to pay the teacher as speci- 
fied in the contract. A verbal contract with a school trustee to teach a school is 
as binding as a written contract.— Baldzuin, Atty. Gen. 

A contract to teach school, which is left blank in respect to the terms of em- 
ployment, and contains no stipulation as to how the blanks shall thereafter be 
filled is notbinding; but if treated as a contract of employment for an indefinite 
time, the damages for its breach would be nominal onlj^ 77 Ind. 447. 

The fact that a trustee has no funds is no defense to a teacher's claim for 
compensation, nor an excuse for refusing to allow him to complete his term of 
employment, 80 Ind. 276. 

A teacher of a common school is entitled to compensation, if failure to 
actually conduct the school each day of the term was caused bj' the act or 
omission of the school authorities; and where the evidence shows that a strict 
performance by the teacher of the conditions of the contract has been prevented 
or waived b}' such act or omission, a recovery can not be defeated by such 
failure, 74 Ind. 127. 

The licensing of a minor to teach in our public schools does not remove his 
disability to bind himself by a contract to teach school. Any contract such 
minor may make with a school township is binding upon the township, and 
such minor may sue the township and recover the value of his services, even 
though that amount be more than the price agreed upon. But the minor is not 
bound to teach the school unless he sees fit, and he can receive pay only for the 
work actually done. — Baldwin, Atty. Gen. See 2 above. 

4. Protest against teacher. A protest against a teacher to be binding must 
be made at a school meeting regularly called and conducted according to law 
before the employment of the teacher, and by a majority of all the persons en- 
titled to vote at such meeting, not merely a majority of those present. The 
persons entitled to vote at the school meeting of a district are all tax-payers, 
male and female, except married women and minors, who have been listed by 
trustees as parents, guardians, or heads of families, and attached to such district 
(§ 4498, Tiote i). The patrons are bylaw entitled to protest against the employ- 
ment of any teacher. It is the trustee's duty to allow them an opportunity "to 
make their protest in the manner provided by law, and if he is notified that a 
school meeting will be called for that purpose, any contract he may make M'ith 
a teacher will be subject to the action of such meeting. Patrons are not em- 
powered to select teachers (§ 4444, note 2), and they can not eftect a selection 
indirectly by protesting against all the world except a certain person. The 
protest must name definitely the person or j^ersons against whom it is directed. 
— Holcombe, Suft. 

5. Dismissal of teachers. A teacher employed for a definite time may be 
discharged for incompetency; but if he is competent, and is, in all things, 
fulfilling his contract, he can not be, without his consent, 42 Ind. 200. But when 



§450l] EDUCATION. [648 

the teacher is improperly discharged the school corporation, not the trustees 
personally, is liable, 51 Ind. 206. 

This is the language of the supreme court, and, although made with refer- 
ence to a city, is an enunciation of the common law principle, and is, I think, 
applicable to the case of dismissal of a teacher by a township trustee, without a 
petition from the patrons. If the teacher breaks the contract, it seems to me that 
the trustee should not be bound by it. The law requires the trustee to investigate 
charges made against a teacher by a majority of the voters of the district, but 
it is held that he may investigate charges made by any number of responsible 
patrons. The decision of the supreme court upon an analagous question in 
Thayer vs. State, 21 Ind. 317, justifies this opinion. — Smart, Suft. 

The trustee should investigate the truth or falsity of the matter allegea lor 
the dismissal of a teacher. For this purpose he should cause the parties — 
petitioners and teacher — on an appointed day to appear before him, when 
he should hear the testimony /rt» and con. Any of the causes for the revocation 
of a license enumerated in § 4426 is likewise good cause for the dismissal of a 
teacher. Peculiar circumstances may sometimes render dismissal proper for 
other causes, — Bloss, Supt. 

6. Holidays. The Fourth of July, Thanksgiving Day, Christmas, and 
New Year's are, by universal consent and very general practice, regarded as 
holidays in this country. Employes in almost all kinds of business are excused 
from labor on those days and allowed their wages. It would surely be very 
unreasonable to make the teacher an exception to this general rule. — Hopkins, 
Supt. The teacher is entitled to the usual public holidays, and no deduction 
should be made from his wages for a failure to teach on those days, 39 Mich. 
484. 

7. I71 cities and toxvns. The latter part of this section (concerning the 
power of school meetings and the employment and discharge of teachers) has 
no application to cities and incorporated towns. But if, in such cities and 
towns, the teacher be incompetent, or fail in the duties of teacher, he may be 
dismissed by the school trustees, 42 Ind. 200. 

8. For rjhat term may he employed. School oi?icers have the poAver to 
make contracts for the employment for terms to commence after the expiration 
of the current year, 106 Ind. 478; 36 Conn. 280; 67 N. Y. 36; 27 N. E. Rep. 
303; contra, S^j 111. 255 ; 92 111. 293; 4 111. App. 224 ; 8 Jones (N.C.) L.98; but see 
5 Hun. 649; 51 Mo. 21 ; 44 Mich. 500 ; 33 la. 105. Where school trustees, with the 
acquiescence of the school town, continue to act as such after the expiration of 
their term, and before their successors are appointed, they are officers de facto, 
and a contract with a teacher entered into by them is binding on the town, 27 
N. E. Rep. 303. 

9. Corporeal punishment. A teacher, within the limits of his jurisdiction 
and responsibility, may exact compliance with all reasonable commands, and 
may, in a kind and reasonable spirit, inflict corporeal punishment upon a pupil 
for disobedience. The punishment ought to be within the bounds of modera- 
tion and apportioned to the gravity of the offense, but when complaint is miade, 
the judgment of the teacher as to what the situation required should have 
weight, as in the case of a parent under similar circumstances, and the reason- 
ableness of the punishment must be determined upon the facts of the particular 
case. In the case of the chastisement of a pupil, the intent necessary to sup- 
port a charge of assault and battery may be inferred from the unreasonableness 
of the method adopted or the excess of force employed, the burden of proving 
Avhich rests upon the State or prosecution. In such case, in addition to the 
general presumption of innocence, the teacher, in support of his defense, has 
the presumption of having done his duty. The legitimate object of chastisement 
is to inflict punishment'by the pains which it causes as well as by the degrada- 
tion which it implies; and it does not follow that a chastisement was cruel or 
excessive because pain was produced or abrasion of the skin resulted from a 
switch used by the teacher. When a proper weapon has been used, the char- 
acter of the chastisement, Avith reference to any alleged cruelty or excess, must 
be determined by the nature of the oftense, the age, physical and mental con- 
dition, as well as the personal attributes, of the pupil, and the deportment of 
the teacher, 113 Ind. 276; 69 Ind. 295, S. C. 35 Amer. Rep. 216; 4 Ind. 290; 4 



649] EMPLOYMENT OF TEACHERS. [§4501 

Gray, 36 ; 32 Vt. 114; 68 N. C. 322; 5 Pa. L. Jr. Rep. 78. In one case it was 
said: "The law having elevated the teacher to the place of the parent, if he is 
still to sustain that sacred relation, it becomes him to be careful in the exercise 
of his authority, and not make his power a pretext for cruelty and oppression. 
Whenever he vindertakes to exercise it, the cause must be sufficient, the instru- 
ment suitable for the purpose; the manner and extent of the correction, the 
part of the person to which it is applied, the temper in which it is inflicted, all 
should be distinguished with the kindness, prudence and propriety which be- 
comes the station,"' 4 Ind. 290, 632. See 32 Vt. 114; 4 Gray, 36; 3 Head. (Tenn.) 
455; igVt. 91; 5 Pa. L. Jr. Rep. 78; i City Hall Rec. 52; 40 Barb. 541 ; 3 Quar- 
terly L. Jr. 92; 45 la. 248; S. C. 50 la. 145, S. C. 43 Am. Rep. 128. If no rule 
of the school board prevents it, the teacher may punish a pupil within the 
bounds prescribed by law, even though he have an instruction from the pareyit 
that the child must not be punished, 3 Tenn. L. Rep. 19. In case the punish- 
ment is proper the father is not excusable if he assault the teacher because of it, 
I City Hall Rec. 52. K fupil over the school age is subject to punishment as 
any other pupil, 45 la. 248, S. C. 24 Am. Rep. 769; 27 Me. 266, The teacher is 
not confined to mere whipping; he may impose a reasonable restraint upon the 
person of the pupil, either by way of prevention or punishment of disorderly 
conduct, 4 F. & F. 656; Cooley on Torts, 171. The teacher is the absolute 
judge of the kind of punishjnent, with the limitation that it must be reasonable 
and usual, and not destructive of the object of the relation, or subversive of 
the contract under which the relation exists, 40 Barb. 541; Ware, 219, 230. 
''The legal objects ajid purposes of piuiishment in school are like the objects and 
purposes of the State in punishing a citizen. They are three-fold: First, the 
reformation and the highest good of the pupil ; second, the enforcement of correct 
discipline in schools; and third, as an example to like evil doers," 50 la. 145, 
S. C. 32 Am. Rep. 128. No punishment is justifiable unless it is inflicted for 
some definite offense which the pupil has committed; and the pupil must 
understand what he is being punished for. If he does not know why the pun- 
ishment is inflicted, the act is unlawful; it is subversive and not promotive of 
the true object of punishment, "and can not be justified," 50 la. 145, S. C. 32 
Am. Rep. 128. In the absence of proof the law presumes that the teacher pun- 
ished his pupil for a reasonable cause and in a moderate and reasonable 
manner. This presumption, like all other legal presumptions, may be rebutted 
by proof, 50 la. 145, S. C. 32 Am. Rep. 118; 19 Vt. 102; 113 Ind. 276. The 
teacher has the right to show that the chastisement was reasonable, and for mis- 
conduct in school, 45 la. 248, S.C. 24 Am. Rep. 769; 79 Ind. 75. "The welfare 
of the child is the main purpose for which pain is permitted to be inflicted. 
Any punishment, therefore, which may seriously endanger the life, limbs or 
health, or shall disfigure the child, or cause any other permanent injury, maj^ 
be pronounced in itself immoderate, as not only being unnecessary for, but in- 
consistent with, the purpose for which correction is authorized. But any cor- 
rection, however severe, which produces temporary pain only, and no perma- 
nent ill, can not be so pronounced, since it may have been necessary for the 
reformation of the child, and does not injuriously eftect its future welfare. 
* * * When the correction administered is not in itself immoderate, and 
not, therefore, beyond the authority of the teacher, its legality or illegality must 
depend entirely on the qico anijno with which it is administered. Within the 
sphere of this authority the master is the judge when correction is required, 
and of the degree of correction necessary; and like all others intrusted with 
discretion he can not be made personally responsible for error of judgment, but 
only for wickedness of purpose,''^ 2 D. & B. (N. C.) 365. But it has also been 
held that excessive punishtnentcdiU not be justified from the fact that the teacher 
acted in good faith and without malice, honestly believing the punishment was 
necessary for the discipline of the school and the welfare of the pupils, 7,2 Vt. 
114. W'^here the teacher beat the pupil, with the consent of the father, so severely 
that the child died, it was held that he was guilty of manslaughter, 2 F. & F.202. 

10. Illegally dismissing teacher. A teacher of a school is entitled to com- 
pensation, notwithstanding his failure to conduct the school each day of the 
term, if such failure was caused by the wrongful act or omission of the township 
authorities, 74 Ind. 127; and the fact that the trustee had ;/(^ /"//;/</.<• with which 
to pay the teacher after he has taught a part of the time for which he was em- 



§450l] EDUCATION. [65O 

ployed is no excuse for refusing to allow him to complete his term, nor does it 
constitute a defense to his claims for services, So Ind. 276; 96 Ind. 185 ; nor is 
it any defense that the school \yas taught longer in that district than in the 
other districts of the township, for that year, and for that reason there ^vas no 
funds, 80 Ind. 276. Sufficiency of comflaint, 100 Ind. 268; 107 Ind. 351. If a 
teacher is rightfully dismissed he can not recover for services thereafter, 
though he takes possession of the school-house and continues to teach, 61 Ga. 
413. But if he is -wrongfully dismissed, or if he leaves school because of the 
unjustifiable action of the; board, he may recover for his whole time, 2 111. App. 
458; 46 Vt. 452; 55 Mo. 149; unless during the period for which he was em- 
ployed he earned money elsewhere, or could have earned it by reasonable dili- 
gence, in like employment, which may be deducted, on an answer filed to that 
eftect, from what he would have otherwise recovered, 66 Barb. 21. A trustee is 
not personally liable for removing £l teacher from a school contrary to the con- 
tract, 79 Ind. 576; see 51 Ind. 206. Where an order employing a teacher is 
passed at a session of the board of school trustees it is immaterial that the 
trustees signed the contract at different times. , Such contract cannot be annuled 
by the subsequent action of the school town in abolishing the department in 
which he was engaged to teach, 27 N. E. Rep. 303. 

II. Rules aiid regulations — Rxfulsion — Liability of school officers. In the 
absence of the establishment of any rule by the school board a teacher has the 
right to adopt a rule to prevent his pupils using /ro/a«e language, fghting or 
quarreling on their ^yslJ to and from school, and may punish those infringing 
t.he rule by the use of the rod, 85 Mo. 485, S.C. 24 Am. L. Reg. 662; 32 Vt, 114; 
23 Tex. App. 386. But neither the board of education, nor the trustee, nor the 
teacher has the power to require each pupil, when returning to the school after 
recess, to bring into the school-room a stick of xvood for the fire; because it is 
not ''needful for the government of the schools," within the meaning of the 
statute clothing the board with its powers, 63 Wis. 234; S. C. 24 Am. L. Rep. 
601. Neither a school board nor a teacher has power over a pupil while at 
home, 24 Mo. App. 309, and can not make a rule that a pupil shall not attend a 
social partv, and expel him if he does, 66 Mo. 286; S. C. 27 Am. Rep. 343; nor 
prohibit his joining a college secret fraternity society, 82 Ind. 278. But the 
various school boards and other educational authorities have pozver to adopt 
appropriate rules and regulations for the government of the schools under their 
control. It is not necessary that all such rules be made a matter of record by 
the school board, or that every act, order or direction aftecting their manage- 
ment shall be authorized or confirmed bj' a formal vote; but any reasonable 
rule adopted by a superintendent or a teacher not inconsistent with some statute 
or some other rule prescribed by higher authority is binding upon the pupils. 
A rule requiring a city superintendent to visit all the schools under his charge, 
and to see that the best methods of instruction are adopted, confers upon him 
authority, if it were otherwise wanting, to order and promulgate such additional 
reasonable rules as the best interests of the schools may require. A rule requir- 
ing /crr^v /?^//V.y to remain either in the hall of the school building, which is 
provided with heat, or in the office of the principal, until the opening exercises, 
lasting from ten to fifteen minutes, are concluded, in order that such exercises 
may not be interrupted or disturbed, is in itself a reasonble regulation. In 
the enforcement of all rules for the government of a school due regard must be 
had to the health, comfort, age, mental ^^ndi physical condition of the pupils, and 
to the circumstances attending each particular emergency, and the condition of 
the v:cathcr,t\iQ infirmity of a pupil, and the like, may require relaxation in 
their strict manageinent. A school regulation must not only be reasonable in 
itself, but its enforceme7it must also be reasonable under all the circumstances. 
The habit of locking the doors of a school-room duri?ig the openi7ig exercises is 
not an unreasonable enforcement, under ordinary circumstances, of a rule 
requiring pupils to remain in the hall duringthat time; but \^\\\Qtveather is un- 
usually severe, and proper steps are not taken for the comfort of children thus 
excluded, such method of enforcement is unreasonable and improper. A school 
ofiicer is not personally liable for a mere mistake of judgment in the govern- 
ment of his school ; but to create liability it must be shown that he acted in the 
matter complained of wantonly, willfully or maliciously. The detention of a 
pupil for a short time after school hours, as a penalty for'some omission or mis- 



651] DIRECTORS. [§§4502 4504 

conduct, is one of the recognized methods of enforcing discipline and promoting 
the progress of the pupils in the common schools, and although the detention 
be mistaheu^ it possesses none of the elements of false imprisonment, unless 
imposed from wanton, willful or malicious motives, iii Ind. 473, 86638 Me. 
376; 12 Allen, 127; 23 Ohio St. 211. The rules may be enforced by suspension 
and expulsion if necessary, 105 Mass. 475 ; 30 la. 429 ; 31 la. 562; 33 Ohio St. 
321 ; 79 111. 567; 29 Ohio St. 89. But if the rule is unreasonable, and a pupil is 
punished for a refusal to submit to it, an action will lie, 21 Ohio St. 666. See 
48 Cal. 36. Thus a rule requiring a pupil to pay for the wanton and useless 
destruction of school property is unreasonable, and a teacher has no right to 
enforce such a rule by chastisement, 116 Ind. 11, b. C. 18 N. E. Rep. 266; 77 
Mich. 605, S. C. 43 N. W. Rep. 996; 56 la. 476. Mandamus lies to compel the 
restoration of a pupil illegally suspended or expelled, 77 Mich. 605 ; 82 Ind. 279 ; 
27 N. E. Rep. 54. 

12. Trustee advancing funds. A trustee who, in good faith employs nec- 
essary and proper teachers — when it is unexpectedly found that the public 
funds provided are insufficient to pay them in full — advances the deficit from 
his own means, has a demand against the school township upon which he may 
recover, 102 Ind. 281. 

[1865 S., p. 143. Approved and in force December 20, 1865.] 

Sec. 4502. Special examination. 35. If the persons attached 
to and forming a school district have, at their school meeting, 
designated other or a less number of branches of learning than 
those in section thirty-four of this act [§ 4425] mentioned, which 
they desire to have taught in their school, the trustee, in employ- 
ing a teacher for said school, shall require said teacher to be 
examined as to his qualifications to teach the branches of learning 
required by said school meeting. 

See § 4497 and notes, and § 4425, note 7, 

[1865, p. 3. Approved and in force March 6, 1865.] 

Sec. 4503. Director's duties. 29. The director of each school 
shall preside at all meetings of the inhabitants connected there- 
with, and record their proceedings. He shall also act as the or- 
gan of communication between the inhabitants and the township 
trustee. 

Remark. The creation of the office of district director was designed to 
devolve a certain class of the township trustee's duties, which might very 
properly and with more promptness be discharged by a. local agent in each dis- 
trict, upon a person chosen by the people of the locality immediately interested. 
Much will depend on the energy, intelligence and promptness of the director, 
—Mills, Supt. 

Sec. 4504. He has charge of the school-house. 30. He shall 
take charge of the school-house and property belonging thereto, 
under the general order and concurrence of the trustee, and pre- 
serve the same ; and shall make all temporary repairs of the school- 
house, furniture, and fixtures, and provide the necessary fuel for 
the school, reporting the cost thereof to the trustee for payment, 

1. Possession of house. We think the trustee has the charge and possession 
of the school -house, for although the director has the charge for certain pur- 
poses, he acts under the order and concurrence of the trustee, 47 Ind. 148. 

2. Temporary repairs — Fuel. The director is the local agent of the trustee, 
and is subject to his orders. He. however, is to exercise entire control so far as 



§4505] EDUCATION. [652 

temporary repairs are concerned, and is to provide necessary fuel. Let us ex- 
plain what is meant by necessary fuel. It refers not simply to quantity, but 
also to the quality or fuel and its preparation for use. A tree hauled up to the 
door is not necessary fuel, nor is a load of good four-foot wood. Necessary fuel 
means that which is dry, conveniently piled and properly prepared for use. The 
expense of preparing the fuel is to be reported by the director to the trustee, 
who is to paj^ the former for it. A teacher is not a wood-hauler, wood-chopper, 
or wood-sawyer, unless he specially contracts to be such. — Fletcher, Supt. 

3. Janitor service. It is as much the duty of the trustee to see that the 
fuel is placed in the stove and the school-room made comfortable and neat, as it 
is to furnish the fuel and brooms for these purposes, or to see that the children 
are well taught and disciplined when once in the room. How and through whom 
he shall accomplish these things is just where the law is wisely silent. I can 
conceive of various ways in which he may accomplish them. He may author- 
ize the director, who is generally chosen because of his proximity to the school- 
house, to perform the work, and then pay him out of the special school tax ; or 
he mav authorize him to employ some suitable person, and compensate the em- 
ploye in the same manner ; or he may employ the teacher himself, and pay 
him from the same source. — Hopkins^ Supt. 

Unless there is an agreement between the trustee and teacher that the latter 
is to perform janitor's service, I think he can not be compelled to do so. — Smart, 
Snpt. 

It is the duty of every school director to put his school-house in a suitable 
condition for the reception of pupils, and this is as much his duty at the middle 
of the term, or the last day, as the first day. A school -house is not fit to receive 
the pupils until the janitor work has been done each day. It is as essential that 
he should put the school-house in a clean and comfortable condition as it is that 
he should repair the roof. It being his duty, by consent of the trustee, and not 
being any part of the teacher's duty, to prepare the school-house in a suitable 
manner for the reception of the pupils, he has a right to employ the usual 
agency and pay a suf^cient sum to accomplish it. The trustee is therefore em- 
powered to allow a reasonable amount for such expense in providing a janitor 
for the school-house, and the board of county commissioners can not do other- 
vv^ise than allow all reasonable bills of the same kind. — Baldzvin, Atty. Gen. 

Sec. 4505. Visits schools — May exclude pupils. 31. He shall visit 
and inspect the school, from time to time, and, when necessary, 
may exclude any refractory pupil therefrom ; but the exclusion of 
any pupil from the school for disorderly conduct shall not extend 
beyond the current term, and may be, in the discretion of the 
director, for a shorter period. 

1. Refractory ptipil. Directors have the power to exclude refractory pu- 
pils from school for the current term, and School trustees of cities and towns 
have, undoubtedly, the same right. A refractory pupil is one who persistently 
refuses to obey the reasonable rules and regulations of the school, whether made 
by the teacher or by the countv board. The teacher mav temporarily exclude 
from school a disorderly and noisy pupil. In such case the matter should be 
reported to the director as soon as possible. — Smart, Supt. See § 4501, notes . 

2. Exclusion for truancy. The law provides that refractory pupils may 
be excluded from school. Truancy is a very great evil, tending in various ways 
to disturb the order and interrupt the progress of the whole school, A very 
high authority has declared it the greatest hindrance to the improvement of our 
schools, and the laws of some States have made it in some sense penal. Con- 
sidering the magnitude of the evil, it seems scarcely to admit of question that 
pupils habitually, incorrigibly truant, may be excluded from school for the cur- 
rent term as refractory. — Hohhs, Supt. See ^ 4501. note 11. 

3. Teacher^ s power as to discipline. The law is well settled, as it seems to 
us, that the teacher has the right to exact from his pupils obedience to his law- 
ful and reasonable commands, and to punish disobedience. In a recent Wis- 
consin case it was well said, " In the school, as in the famih', the^e exist on the 
part of the pupils the obligations of obedience to lawful commands, subordina- 



653] APPEALS. [§§ 4506 4508 

tion. civil deportment, respect for the rights of other pupils, and fidelity to duty. 
These obligations are inherent in any proper school system, and constitute, so 
to speak, the common law of the school. Every pupil is presumed to know this 
law, and is subject to it, whether it has or has not been re-enacted by the dis- 
trict board in the form of written rules and regulations," 69 Ind. 295. See 
§ 4501, note 9. 

4. Teacher s aiithoritv oiit of school. On this difficult subject we are with- 
out guidance from our own supreme court, but find sound principles enunciated 
in the familiar case of Lander vs. Seaver, 32 Vt. 114, as follows: "When the 
child has returned home cr to his parents' control, then the parents' authority 
is resumed and the control of the teacher ceases, and then tor all ordinary acts 
of misbehavior the parent alone has the power to punish." But "though a 
schoolmaster has, in general, no right to punish a pupil for misconduct com- 
mitted after the dismissal of school, and the return of the pupil to his home, 
yet he may, on the pupil's return to school, punish him for any misbehavior, 
though committed out of school, which has a direct and immediate tendency to 
injure the school and to subvert the master's authority," as when the pupil, "in 
the presence of other pupils of the same school used tow-ards the master, in his 
hearing, contem-ptuous language, with a design to insult him, and which had a 
direct and immediate tendency to bring the authority of the master over his 
pupils into contempt, and lessen his hold upon them and his control over the 
school." Teachers, therefore, should be very careiul how they punish pupils for 
what they may do or say away from the school premises, and should never 
undertake to punish for such behavior unless it seems necessary for the preser- 
vation of discipline in the school. The teacher can not justly be held responsi- 
ble for the conduct of pupils w^hen out of his sight or beyond his pontrol, and he 
should give parents and guardians to understand that he w-ill not attempt to 
exercise a control which it is their duty to exercise themselves. — Holcoinbe, 
Siipt. See § 4501, Jiotes 11 and c). 

5. A pupil was expelled for violation of a rule, but reinstated by order of 
court. He w^as expelled again for a violation of the same rule. It was held that 
the second expulsion was not a contempt o'i court, 26 N. E. Rep. 798. 

Sec. 4506. Appeal to trustee. ,32. The decision of the director in 
excluding a pupil shall be subject to appeal to the township trus- 
tee, whose decision shall be final. 

The parent or guardian or the pupii himself may appeal. No formal docu- 
ments are necessary, and the trustee has the right to make an investigation upon 
a verbal statement. But he should make a record of the facts in the case and of 
his decision thereon. — Smart., Sicpt. 

Sec. 4507. Insulting teacher. 162. If any parent, guardian, or 
other person, from any cause, fancied or real, visit a school with 
the avowed intention of upbraiding or insulting the teacher in the 
presence of the school, and shall so upbraid or insult the teacher, 
such person, for such conduct, shall be liable to a fine of not more 
than twenty-five dollars ; which, when collected, shall go into the 
general tuition revenue. 

Part unco7istituttonal. The provision that the proceeds of the fine shall go 
into the general tuition revenue is void, since the constitution (§ 183) makes 
fines assessed for breaches of penal laws of the State a part of the common 
school fund. 

Sec. 4508. Title of school property. 157. The title to all lands 
acquired for school purposes shall be conveyed to the township, 
incorporated town, or city for which it is acquired, in the corpo- 
rate name of such township, town, or city, which is used for 
school purposes, for the use of common schools therein. In all 



§ 4409] EDUCATION. [654 

cases in which the title to any such land is vested in any other 
person or corporation than as above provided, it shall be the duty 
of the trustee for school purposes of the township, town, or city to 
procure the title to be vested as in this section provided. 

1. Trust title— Chajige of tricstec. The corporation (township, town, or 
city) holds the title in trust for school purposes, and upon the incorporation of 
a town it becomes the trustee, and entitled to such real estate as lies within its 
boundaries, 27 Ind. 465 ; 86 id. 582; and mandamus lies to compel a conveyance 
of it to the new town or city, 109 Ind. 559. 

2. Formation of toxv7i — Revenue. If a town is formed out of a portion of 
a township the school trustees of the town are entitled to demand and receive 
of the township trustee the proportion of school moneys belonging to the town, 
and it is the duty of the township trustee to ascertain the amount and pay it 
over to the town school board, 64 Ind. 275. 

3 ScJiool board — To-cvnshtp trustee. Under the law, it is clearlj' the duty 
of the trustees of an incorporated town to appoint school trustees for the cor- 
poration, and I think they can be compelled to do so by a writ of mandate from 
the circuit court. In case the township trustee continues to control and man- 
age the schools of an incorporated town (no town school trustees having ever 
been appointed), I think that, under the general principle that an officer shall 
continue to perform his duties till his successor is appointed and qualified, he 
would be liable on contracts made by him m exercising such control and man- 
agement. — Holcombe^ Supt. 

4. Corporate limits — Conditional deed. A school corporation can not es- 
tablish a school outside of its territorial limits, 56 Ind. 521. You say that a 
lot was deeded to a township "for school purposes," and ask if the house built 
thereon will revert to the original owner if the trustee decides to change the 
location of the school-house If the above quotation is all that is expressed in 
the deed upon that subject, then I think the property will not revert to the 
original ow^ner, If the deed should say " so long as used for school purposes," 
then I suppose it might revert to the original owmer. — Woollen, Atty. Gen. See 
§ 451 1, note I. 

5. Appropriatio?i for Ingh'cvays. School grounds and the buildings there- 
on, held by a township, may be appropriated for a public highway, 88 Ind. 453. 

Sec. 4509. Use of school-house. 158. When a school-house is 
unoccupied by a common school of the State, and the people who 
form the school at such house desire that a private school be taught 
therein, and a majority of them make application to the trustee 
having" charge of such house for the use of it for such private 
school, it shall be the duty of the trustee to permit said school- 
house to be used for such private school by such teacher as may 
be mentioned in the application, but not for a longer time than 
until said house may be wanted for a public school ; and such per- 
mission and use shall be upon the condition that the teacher em- 
ployed in said school shall report, in writing, to the trustee — 

First. The number of teachers employed, distinguishing between 
male and female. 

Second. The number of pupils admitted into the school within 
the term, and the average daily attendance. 

Third. The cost of tuition, per pupil per month, in said school. 

I. Teachej'\<i report — Care of house. It is not the intention of this section 
to deny the trustee the right to permit the use of a school-house for a private 
school, in the absence of a petition, unless there shall be a protest of a majoriL7 
of the district against such use. In order to secure proper qualification on the 



655] SCHOOL PROPERTY. [§ 45 lO 

part of the teacher it is recommended that, other things equal, the house be let 
to a teacher holding a valid license. To secure the preservation of the house 
it is recommended that some reliable party should he held responsible to the 
trustee for proper care of such property, and for repair of all damages. This 
party may be the teacher or some other, as may be agreed upon. It is hoped 
that" trustees Avill insist upon reports Irom teachers, as provided for in this sec- 
tion. — Hoss, Su_pt. 

2. Trustee s discretion. The people who form the school at such house 
must be construed to mean the persons entitled to vote at the school meetings. 
The trustee has no discretion as to permitting the use of a school-house ibr a 
private school when applied for as provided in this section. He must permit 
the use. The teacher occupying a school-house, imder such petition, thereby 
obligates himself to comply with the condition contained in the law as to re- 
porting. — Hobbs, Supt. 

3. Appeal to cotnity superintendent . As the law provides for holding private 
schools in public school buildings, and prescribes the steps to be taken in obtain- 
ing permission to hold them, I think § 4537 as to appeals must be held to apply 
to the establishment of such private schools, as well as the regular public 
schools. If, therefore, the directions of this section have been complied with, 
and the trustee refuses the use of the house for a private school, an appeal may 
be taken to the county superintendent. If the trustee refuses to obey the 
decision of the superintendent, he may be compelled to do so by a writ of 
mayidate. — Holcombe^ Supt. 

4. Public funds. The public funds can not be used for a private school, 16 
Nev. 373; 121 111.297. 

5. Constitutionality . Is this section constitutional.^ See § 4510, note 3. 

6. Of his own motion the trustee can not lease the school-house for the pur- 
pose of a private school, 35 Ohio St. 143. 

[1859, p. 181. Approved March 3, 1859, and in force August 6, 1S59.] 

Sec. 4510. Use of school-house. 6. If a majority of the legal 
voters of any school district desire the use of a school-house of 
such district for other purposes than common schools, when un- 
occupied for common school purposes, the trustee shall, upon 
such application, authorize the director of such school district to 
permit the people of such district to use the house for any such 
purpose, giving equal rights and privileges to all religious denom- 
inations and political parties, without any regard whatever to the 
numerical strength of any religious denomination or political party 
of such district. 

1. Note. The trustee, upon application of a majority of the legal voters of 
a school district, may authorize the director to permit the use of the house for 
other than school purposes, and a complaint to enjoin such use must aver that 
a majority of the legal voters of the district have not expressed a desire there- 
for, 48 Ind. 148. 

2. Trustce\'i po-ivcr and duty. The trustee is made responsible for the care, 
management, and preservation of the school-houses in his school corporation. 
This trust he can not alienate. It is true that it is his duty to permit the school - 
house to be used for other then school purposes Avhen the terms of the \o.\\ have 
been complied with, but it is equally true that it is contemplated by the law 
that the trustee shall retain such control of the school-house as will enable him 
to enforce the provisions of the law. Inasmuch as the trustee must give equal 
rights and privileges to all religious denominations and political parties, it is 
clear that he can not make a contract with any party by reason of which one 
denomination or one political party shall obtain possession of the house to the 
exclusion of any other, except for the time being, or by which the control of 
the house shall pass from his hands. 



§§ 45 I I > 4512] EDUCATION. [656 

It is not necessary that the voters of a district petition the trustee on each 
separate occasion that the house is desired for other than school purposes, but if 
a general petition be filed with the trustee, in proper form, requesting, for 
example, that the house be used for religious purposes, he may then permit the 
house to be so used as occasion may require. In the absence of an expressed 
desire on the part of the voters of a district it is held that the trustee may, 
through the spirit of aecommodation rather than by a strict construction of the 
law, permit school-houses to be used for religious and other public meetings 
when he is satisfied that a majoritv of the district do not object. 

In all cases when school-houses are used for such purposes it is the duty of 
the trustee to prescribe and enforce such rules and regulations as will protect 
the property from injury. It is evident that the provisions of this section apply 
only to districts in townships, and not to cities and incorporated towns. — 
Smart Supt. 

3. Decisions. In Iowa it has been held that the electors of a school district 
may legally permit the school- house in the district to be used for the purposes 
of religious worship and Sunday-schools, 35 Ind. 194; and that a statute per- 
mitting such use was valid, even though a minority of the tax-pa^^ers objected, 
50 la. II : 93 111. 61, S. C. 34 Am. Rep. 160. But in other States it has been 
held that the use of a public school building for religious meetings would be 
enjoined by the courts, 27 Conn. 499; or for Sunday-school, 67 Mo. 301 ; or for 
temperance meetings, 21 Wis. 657; or for a private school, 35 Ohio St. 143; or 
for any private purpose, 15 Kan. 259, S. C. 23 Am. Rep. 268. 

[1S65, p. 3. Approved and in force March 6, 1865.] 

Sec. 4511. School-house, when sold. 149. The proper trustee may, 
whenever a school-house shall have been removed to a different 
location, or a new one erected for the school in a different place, 
if the land whereon the same is situated belongs unconditionally 
to the township, town, or city, sell the same, when, in his opinion, 
it is advantageous to the township, town, or city so to do, for the 
highest price that can be obtained therefor; and upon the payment 
of the purchase-money to the township, town, or city treasurer, 
he shall execute to the purchaser a deed of conveyance, which 
shall be sufficient to vest in - such purchaser all the title of such 
township, town, or city thereto. The money derived from such 
sale shall be a part of the special school revenue. 

Conveyaiices. A deed to the school township for the use of the township 
for school purposes is an absolute and not a conditional conveyance, and the 
township may sell the property so deeded. The deed of the township should 
be made in the name of the school township, and signed by the trustee thereof 
as such school trustee. School boards of cities and towns may sell and convey 
a school lot upon the conditions named in this section, 6§ 4437, 4438* 4508, 
note 4. 

[1S77, p. 125. Approved and in force March 6, 1877.J 

Sec. 4512. School-house for several townships, i. The trustees of 
two or more adjacent counties or townships may establish a new 
school district, and build a school-house therein at the joint ex- 
pense of their several townships, whenever, in their judgment, it 
shall appear necessary for the better accommodation of the people 
of their respective townships : Provided^ That such necessity must 
be set forth in a petition of the persons making the request — such 
petition to be presented to each of said trustees. And said trus- 
tees shall, at the time agreed upon by them^ not less than ten 



657J SCHOOL PROPERTY. [§§45i3» 45 4 

days nor more than thirty days from the time of receiving- such 
petition hold a joint meeting, for the purpose of declaring whether 
such petition shall be granted, and take such further action as the 
case may require. 

1, Adjustment of revenue. It Avould seem from the language of the statute 
that when a joint district school is established, parents and guardians living in 
the vicinitr would have the right to elect to send their children to it, even 
though it be out of their own township. Such a choice would generally necessi- 
tate several transfers, but transfers can not be made except at the time of taking 
the enumeration (§§ 4473^ 4474)- The proper way to settle the difficulty would 
be for the trustees of the several townships to pay to the trustee of the one in 
which the house is located the revenue then on hand and afterward received 
for the benefit of the children sent to the school from their several townships, 
till the next enumeration. The matter will thereafter adjust itself. — Smart, 
Sup. 

2. See § 4446, notes 1/03. 

Sec. 4513. Cost of erecting. 2. Each township shall bear part of 
the expense of establishing such joint district school as the num- 
ber of children of school age residing in each township, and 
attaching themselves to said new district at the time of the forma- 
tion, bears to the whole number of children of school age who are 
attached to said district at its formation ; and each township shall 
assume its share of the debt so incurred. But when said school 
shall be established, it shall be supported by the township in which 
it is established, in the manner already prescribed by law. 

Title joi7it. The deed for the property should be in the name of all the 
corporations interested, but after the building is completed and paid for the 
partnership ceases, and the school-house passes under the control of the trustee 
of the township within whose limits the house is situated. — Smart, Supt. 

[1877, p. 126. Approved and in force March 7, 1877.] 

Sec. 4514. Donation and bequests, i. Whenever any person 
shall give or bequeath unto trustees any sum of money exceeding 
five thousand dollars, for the purpose of erecting a public school 
building or seminary in any unincorporated town in this State, and 
upon the express or implied condition contained in said bequest 
that an amount equal thereto shall be raised by the citizens of said 
town or township for a like purpose, the township trustee of said 
township in which said town is situated shall, upon the peti- 
tion of a majority of the legal voters of said township, be author- 
ized to prepare, issue, and sell the bonds of said township, to 
secure a loan not exceeding fifteen thousand dollars, in anticipation 
of the revenue for special school purposes, for the purpose of com- 
plying with the condition annexed to such gift or devise — said 
bonds to bear a rate of interest not exceeding seven per cent, per 
annum, payable at such time, within seven years from date, as 
such trustee may determine: Provided, That until all the bonds of 
any one issue shall have been redeemed, such township trustee 
shall not be authorized to make another issue, nor shall any such 
bonds be sold at a less rate than ninetyrfive cents on the dollar. 
42 



§§4515—4519] EDUCATION. [658 

The county board has no power to appropriate money out of the g-encral 
fund of the county to build a school-house, 55 Ind. 334. 

Sec. 4515. Majority of voters. 2. The whole number of votes 
cast for candidates for congress at the last preceding congressional 
election in the township shall be deemed to be the whole number of 
legal voters of such township, a majority of whose names shall be 
signed to the petition presented to such township trustee; to 
which petition shall be attached the affidavit or affidavits, as such 
trustee may deem necessary, of a competent and credible person 
or persons that the signatures of all the names to said petition are 
genuine, and that the persons whose names are thereto signed are, 
as he believes, legal voters of such township. 

Sec. 4516. Sale of bonds. 3. The township trustee shall record 
such petition, together with the names attached, in the record- 
book of his township, and carefully file away and preserve said 
petition, and shall enter in such record a statement of the time 
when such petition was filed ; and if said trustee shall then be sat- 
isfied that said petition contains the names of a majority of the 
legal voters of said township, he shall then prepare, issue, and sell 
bonds to the amount petitioned for in such petition, as provided in 
section one of this act (§ 45 14), and shall accurately keep a record 
of all proceedings in and about the issue and sale of such bonds, to 
whom, and for what amount sold, the rate of interest they bear, 
and the time when they become due. 

[1881 S., p. 592. Approved and in force April i6, 1881.] 

Sec. 4517. Site for school-house — Eminent domain, i. When- 
ever in the opinion of trustees of school corporations or of the 
township trustee of any township in this State, it shall be con- 
sidered necessary to purchase any real estate on which to build a 
school-house, or for any other purpose connected therewith, such 
township trustee or school trustees, or a majority of them, may 
file a petition in the circuit court of said county, asking for the 
appointment of appraisers to appraise and assess the value of said 
real estate. 

Seg. 4518. Appraisers. 2. Upon said petition being filed (the 
owner or owners of said real estate having had ten days' notice of 
the pendency thereof), the court shall appoint three freeholders, 
resident in said school corporation or said township where said 
real estate is situate, to appraise and assess the value thereof. 

Sec. 4519. Appraisement — Payment. 3. Said appraisers, before 
making said assessment and appraisement, shall take an oath be- 
fore the clerk of said court to make a fair, true, and honest appraise- 
ment of said real estate; and shall then proceed to examine said 
real estate, hear such evidence as they may consider necessary, and 
make report of their appraisement within five days after their 



659] teachers' institutes. [§ 4520 

appointment. Upon said report being filed, the owner or owners 
of said real estate may except to the same for any cause, and a 
trial thereon may be had in said court. When the value of said 
real estate is finally determined in said court, the township trustees 
or school trustees may pay to the clerk of said court, for the use 
of the owner of said real estate, the amount so determined, and, 
upon payment thereof, the title to said real estate shall vest in said 
school corporation for said purposes. 

Note. The question when and where a school shall be located is left to the 
discretion of the trustee; and that question can not be tried on condemnation 
proceedings, 114 Ind. 214. 



ARTICLE 8— TEACHERS' INSTITUTES. 

SEC. SEC. 

4520. To-wnship institutes. 4522. Schools closed. 

4521. County institutes. 4523. Sessions. 

[1SS9, p. 67. Approved and in force March 2, 18S9.] 

Sec. 4i>20. Township institutes. 9. At least one Saturday in 
each month during which the public schools may be in progress 
shall be devoted to township institutes, or model schools for the 
improvement of teachers ; and two Saturdays may be appropriated, 
at the discretion of the township trustee of any township. Such 
institute shall be presided over by a teacher or other person desig- 
nated by the trustee of the township. The township trustee shall 
specify, in a written contract with each teacher, that such teacher 
shall attend the full session of each institute contemplated herein 
or forfeit one day's vv^ages for every day's absence therefrom, unless 
such absence shall be occasioned by sickness or such other reason 
as may be approved of by the township trustee, and for each 
day's attendance at such institute, each teacher shall receive the 
same wages as for one day's teaching: Provided, That no teacher 
shall receive such wages unless he or she shall attend the full 
session of such institute and perform the duty or duties assigned. 
[El. Sup. § 1279.] 

1. Trustee imtr.t notify teachers. Where a school teacher has no notice 
when an institute in his township Avill be held, and he has not been negligent 
in ascertaining the date thereof, he is not liable to a forfeiture of wages. It is 
not the duty of the teacher to go to the school trustee and ascertain the time of 
holding the monthly institute; but it is the duty of the trustee to designate the 
day on which the same will be held, and notify the teachers of such fact. The 
teacher has a right to rely upon the trustee doing his duty, and should not sutfer 
through the non-performance of such duty. — Baldzvin, Atty. Gen, 

2. Teachers must take fart. The obiect of this institute is the improve- 
ment of the teachers of th.e township. It seems to me that all the powers 
necessary to carry out this object are by common law conferred upon the per- 
sons managing the institute. The object of the institute will utterly fail unless 
the teachers attending take part in the exercises. I think, therefore, the con- 
tract which the trustee makes with the teachers, in relation to township insti- 
tutes, necessarily requires the teachers to perform such reasonable exercises and 
duties as may be assigned to them. Indeed, the statute provides that the trustee 



§§45^1 4523] EDUCATION. ' [660 

may designate one of the teachers to preside over the township institute. I am 
of the opinion that the mere presence of a teacher at a township institute does 
not fill the requirements of the law. — Si)iart, Supt, 

I think that mere presence at the institute is not a full compliance with the 
spirit of the law. The law contemplates active participation in the exercises 
of the institute. — Bloss, Siipt. 

3. Attendajice compulsory . It is the duty of a township trustee to contract 
Avith all teachers employed by him to attend township institutes. It is his duty 
to provide for holding such institutes, and to see that they are held. A mandate 
of court maj' be obtained to compel the trustee to perform both these duties. I 
think that, even though the trustee had failed to make a written contract with 
the teachers, he could require them to attend the institutes. — Holcomhe^ Supt. 

[1865, p. 3. Approved and in force March 6, 1S65.] 

Sec. 4521. County institutes. 159. In order to the encourage- 
ment of teachers' institutes, the county auditors of the several 
counties of this State shall, whenever the county superintendent 
of such county shall file with said auditor his official statement, 
showing that there has been held, for five days, a teachers* insti- 
tute in said county, with an average attendance of twenty-five 
teachers, or of persons preparing to become such, draw his w^ar- 
rant on the county treasurer, in favor of said county superintend- 
ent, for thirty-five dollars; and in case there should be an average 
attendance of forty teachers, or persons preparing to become such, 
then the said county auditor shall draw his warrant en the treas- 
urer for fifty dollars, for the purpose of defraying the expenses of 
said institute: Provided, Jwwever, That but one of said payments 
be made in the same year. 

Superintc7idenf s duty and pax. Such an institute as is contemplated by 
the law is not a voluntary association, but a teachers' meeting, at the head of 
which is the county superintendent. He, therefore, has no right to surrender 
it into the hands of an incompetent director, nor to permit a course of proced- 
ure by any one or by the institute itself by which time shall be w-asted or 
unsatisfactory work done. The teachers are there to be instructed, and the 
superintendent must necessarily take the responsibilitv of the institute upon 
himself. The monej'- which the auditor is authorized to pay is to defray the 
expenses of the institute exclusive oi\\\Q per diem of the superintendent, whose 
compensation must be obtained in the usual w^ay. He is also entitled to his 
per diem for reasonable services in making preparations for the institute. — 
Smart, Supt. 

Sec. 4522. Schools closed. 160. When any such institute is in 
session, the common schools of the county in which said institute 
shall be held shall be closed. 

Sec. 4523. Sessions. 161. The several county superintendents 
are hereby required, as a part of their duty, to hold, or cause to 
be held, such teachers' institutes at least once in each year in their 
respective counties. 



66 1] FREE LIBRARIES. [§§4524 4526 



ARTICLE 9— FREE LIBRARIES. 

SEC. SEC. 

4524. In cities of ten Ihousiind inliabitants. 4526/^. Laws repealed. 

4525. Tax to maintain. 45-7- Purchase of books for township libra- 

4526. Real estate. ries. 

4526rt. Real estate for libraries. 452S. Distribution to townships. 

4526^. Library tax in large cities. 4529- Township trustee in charge. 

4526^. County treasurer's report. 4530- Trustee's duties. 

4526<f. County treasurer's settlements. 4S3i- Use of books. 

4526t?. Repealing clause, 4?32. Where kept. 

4526/. Bonds to construct library buildings. 4533- When open. 

45260^. Tax to pay bonds — Payment of bonds. 

[1SS3, p. 103. Approved March 5, 1SS3, and in force June 5, 1SS3.] 

Sec. 4524. In cities of ten thousand inhabitants, i. In all the 

cities and incorporated towns of this State, the board of school 
trustees, board of school commissioners, or whatever board may 
be established by law to take charge of the public or common 
schools of such city or incorporated town, shall have power if, in 
their discretion they deem it to the public interest, to establish a 
free public library in connection with the common schools of such 
city or incorporated town, and to make such rules and regulations 
for the care, protection, and government of such library, and for 
the care of the books provided therefor, and for the taking from 
and returning to said library of such books as the said board may 
deem necessary and proper, and to provide penalties for the viola- 
tion thereof: Provided, That in any city or incorporated town 
where there is already established a library open to all the people, 
no tax shall be levied for the purpose herein named. [El. Sup. 
§ 1284.] 

[iSSi,.p. 47. Approved and in force March 7, 1881.] 

Sec. 4525. Tax to maintain. 2. Such board shall also have power 
to levy a tax of not exceeding one-third of a mill on each dollar of 
taxable property assessed for taxation in such city in each year; 
which tax shall be placed on the tax duplicate of such city, and 
collected in the same manner as other taxes; and when said taxes 
are so collected, they shall be paid over to the said board for the 
support and maintenance of said public library. Such board shall 
have power, and it shall be its duty, to disburse said fund, and ail 
revenues derived from gift or devise, in providing and fitting up 
suitable rooms for such library ; in the purchase, care, and binding 
of books therefor; and in the payment of salaries to a librarian and 
necessary assistants. 

Sec, 4526. Eeal estate. 3. Any such city in which a free public 
library may be established in accordance with the terms of this 
act may acquire by purchase, or take and hold by gift, grant, or 
devise, any real estate necessary for, or which may be donated or 
devised for, the benefit of such library ; and all revenues arising 
therefrom, and the proceeds of the same, if sold, shall be devoted 
to the use of said library. 



§§4526(^,4526^] EDUCATION. [662 

[1SS5 S., p. 160. Approved and in force April 8, 1885.] 

Sec. 4526(2;. Eeal estate for libraries, i. In any case in which the 
board of school trustees of any city of this State have purchased 
any real estate for the use of a public library of said city, under 
sections 4524, 4525 and 4526 of the Revised Statutes of 188 1, and 
the revenue derived from taxation under said sections may have 
been or shall be insufficient to pay for such real estate, then said 
trustees be and they are hereby authorized to pay for the same out 
of any money in the treasury of such school city belonging to the 
special school fund thereof. [El. Sup. § 1285.] 

Note. The constitutionality of this section is questionable. We have not 
given the preamble to this statute. 

[1891, p. 37. Approved and in force February 26, 1891.] 

Sec. 4526^. Library tax in large cities. In all cities of the State 
of Indiana where boards of school commissioners have been elected 
and are managing the school affairs of said city under an act of the 
general assembly of the State of Indiana entitled "An act provid- 
ing for a general system of common schools in all cities of thirty 
thousand or more inhabitants, and for the election of a board of 
school commissioners for such cities, and defining their duties and 
prescribing their powers, and providing for common school libraries 
within such cities," approved March 3, 1871, and the various acts 
of the general assembly amencfetory thereof and supplemental 
thereto, and in which the office of city treasurer has been or here- 
after may be abolished, under and by virtue of an act of the gen- 
eral assembly of the State of Indiana entitled ' ' An act concerning 
taxation for city and school purposes in cities containing a popula- 
tion of over seventy thousand, as shown by the last census of the 
United States ; to abolish the offices of city assessor and city 
treasurer in such cities, and provide for the discharge of the duties 
of such offices, and repealing laws in conflict therewith, " appioved 
February 21, 1885, such boards of school commissioners be and 
they are hereby authorized and empowered in the manner and form 
in which they are now by law authorized to levy taxes, to levy 
taxes for the support of the schools within such city, including 
such taxes as may be required for paying teachers, in addition to 
the taxes now authorized to be levied by the general assembly of 
the State of Indiana, not to exceed, however, in any one year the 
sum of twenty-five cents on the one hundred dollars of the taxable 
property, as shown by the certificate showing the assessment and 
valuation for taxation of all taxable real and personal and railroad 
property of such city, required to be delivered to said board of 
school commissioners by section 8 of the said act of the general 
assembly of the State of Indiana, approved February 21, 1885; 
and also to levy a tax each year not exceeding four cents on each 
one hundred dollars of the taxable property in said city as shown 
by said certificate, for the support of free public libraries in con- 



663] FREE LIBRARIES. [§§4526^ 4526^ 

nection with the common schools of said city, and to disburse any 
and all revenues raised by such tax levied for library purposes in 
the purchase of books and in the fitting up of suitable rooms for 
such libraries, salaries to librarians, and other expenses necessarily 
incident to the maintenance of such library ; also, to make and 
enforce such regulations as they may deem necessary for the tak- 
ing out and returning to, and for the proper care of all books be- 
longing to such libraries, and to prescribe penalties for the violation 
of such regulations. 
See § 3So5(i. 

Sec. 4526^. County treasurer's report. 2. In all cities in the 
State of Indiana where boards of school commissioners have been 
elected and are managing the school affairs of said city under and 
by virtue of said act of the general assembly of the State of Indi- 
ana, approved March 3, 1871, and in which the office of city 
treasurer has been or may hereafter be abolished under and by 
virtue of said act of the general assembly of the State of Indiana, 
approved February 21, 1885, as mentioned and described in the 
first section of this act, it shall be the duty of the county treasurer 
on and after making his settlement with the county auditor on the 
the third Monday of April, 1891, and the payment to the board 
of school commissioners of the amount by such settlement found 
to be due it, as required by section 13 of the last above named act, 
afthe close of each calendar month to make report, duly verified 
by his oath, to said board of school commissioners of all taxes 
and delinquent taxes collected within said month, and thereafter 
upon demand of the treasurer of said board of school commis- 
sioners to pay to him for the use of said board of school commis- 
sioners the full amount of said taxes and delinquent taxes shown 
by said reports to have been collected. Upon such payment be- 
ing made the treasurer of the board of school commissioners shall 
execute to said county treasurer his receipt for the amount of 
money so paid, which receipt the latter shall deliver to the secre- 
tary of the board of school commissioners, who shall give him a 
quietus therefor and credit said county, treasurer with the amount 
thereof and charge such amount to the treasurer of said board of 
school commissioners. 

Sec. 4526^. County treasurer's settlements. 3. Said county treas- 
urer shall thereafter in his settlement with the county auditor, 
made as required by law on the third Monday in April and the 
first Monday of November in each year, present such quietuses to 
the county auditor, who shall give such county treasurer credit 
therefor as against the sums with which he is chargeable upon 
account of ihe collection of such school taxes. 

Sec. 4526^. Repealing^ clause. 4. All laws and parts of laws 
inconsistent herewith are hereby repealed. 



§§ 4526/, 4526^] EDUCATION. ■ [664 

[1S91, p. 35. Approved and in force February 26, 1891.] 

Sec. 4526/ Bonds to construct library buildings, i. In all cities 
in the State of Indiana where boards of school commissioners 
have been elected and are managing the school affairs of said city 
under an act of the general assembly of the State of Indiana entitled 
*' An act providing for a general system of common schools in all 
cities of thirty thousand or more inhabitants, and for the election 
of a board of school commissioners for such cities, and defining 
their duties and prescribing their powers and providing for com- 
mon school libraries within such cities," approved March 3, 1871, 
and the various acts of the general assembly amendatory thereof 
and supplemental thereto such board of school commissioners be 
and they are hereby authorized and empowered to issue bonds in 
any sum not exceeding one hundred thousand dollars, for the pur- 
pose of erecting buildings for library and school offices to be used 
in connection with the common schools of said city. Such bonds 
to bear interest, not exceeding five per cent, per annum payable 
after eleven years from the date thereof and within twenty years 
from the date thereof, as follows, to wit : One-tenth thereof to be 
paid eleven years from date and one-tenth thereof to be paid each 
succeeding year until all are paid; the money obtained from the 
sale of such bonds shall be disbursed by said board of school com- 
missioners in the erection of a building for the library and school 
offices to be used in connection with the common schools of said 
city. Such bonds shall be designated " library building bonds," 
and may be issued in such denominations, and in such sums from 
time to time as the board of school com.missioners may deem ex- 
pedient; and each of said bonds shall upon its face designate the 
date of the maturity thereof : Provided, That at no time shall the 
amount of bonds so issued for such purpose by any such board 
exceed the sum of one hundred thousand dollars; and that said 
board of school commissioners shall have no power to issue any 
renewal thereof but the same shall be paid at maturity as herein- 
after provided: And provided further, That such bonds shall not be 
sold for less than their par value. 

Sec. 4526^. Tax to pay bonds— Payment of bonds. 2. If the 
board of school com.missioners in any city shall exercise the power 
granted to it by this act, it shall provide for the payment of said 
bonds as follows: At the time of the levying of the taxes for the 
year which shall be collectible immediately before the maturity of 
the first maturing of said bonds. Said board of school commis- 
sioners shall levy in addition to the levy of taxes they m.ay be 
authorized to make for other purposes a tax upon all property 
subject to taxation by it sufficient to pay the first maturing of such 
bonds, and apply the money raised thereby to the payment there- 
of; and each year thereafter said board of school commissioners 
shall levy such tax, and apply the proceeds thereof to the payment 
of the bonds successively maturing until all shall have been paid. 



66S^ FREE LIBRARIES. [§§4526/^ 45 3 1 

Sec. 4526/^. Laws repealed. 3. All laws and parts of laws in- 
consistent herewith are hereby repealed. 

[1S65, p, 3. Approved and in force March 6, 1865.] 

Sec. 4527. Purchase of books for township libraries. 134. The 
superintendent of public instruction shall superintend the purchase 
of books for township libraries, under such regulations as the state 
board of education may adopt, and report to said board his pro- 
ceedings in relation thereto; and said board shall order the issuing 
of the warrants by the auditor of state for the payment of said 
purchase from said library revenue. 

1. Remark. The library feature is believed to be one of the best, if not the 
very best, of the provisions in the school law. We hope the library system 
may prove so satisfactory, and become so useful and popular, that the people 
Avill instruct, by common consent, the next legislature to continue the annual 
appropriation for library purposes. — Larrahee^ Supt. 

2. Sections inoferative. It is to be regretted that the hopes of Supt. 
Larrabee were not fulfilled. The repeal, by an act of March 9, 1867, of section 
131 of the act of March 6, 1S65, which provided for a state tax of one-tenth of 
a mill for the purchase of libraries, renders this and the following section 
obsolete. 

Sec. 4528. Distribntion to townships. 135. The state board of 
education shall, w^hen such libraries have been received, cause the 
same to be distributed to the several townships in the State, under 
the direction of the state superintendent, who shall apportion the 
same according to the school population of the townships : Pro- 
vided, however, That existing inequalities in township libraries shall 
first be corrected, and that an equal allotment be made to each of 
the state prisons as is distributed to townships. ^ 

Sec. 4529. Township trustee in charge. 136. Such library shall 
be in charge of the township trustee, shall be deemed the prop- 
erty of the township, and shall not be subject to sale or alienation 
from any cause whatever. 

Sec. 4530. Trustee's duties. 137. Such trustee shall be account- 
able for the preservation of said library; may prescribe the time 
of taking and the period of retaining books ; assess and recover 
damages done to them by any person ; and adopt regulations nec- 
essary for their preservation and usefulness. He shall provide 
book-cases; also, blank books, ruled, in which to keep an account 
of books taken out and returned; and report the number each 
year to the county superintendent. At the commencement of 
each school term, at each school-house in the township, he shall 
cause a notice to be posted up, stating where the library is kept, 
and inviting the free use of the books thereof by the persons of 
the township. 

Sec. 4531. Use of books. 138. E^very family in the township 
shall be entitled to the use of two volumes at a time from said 



§§4532 — 45 3^] EDUCATION. [666 

library, whether any member of such family shall attend school or 
not. 

Sec. 4532. Where kept. 139. The trustee may deposit the 
library at some central or eligible place in the township, for the 
convenience of scholars and famihes, and may appoint, for that 
purpose, a librarian to have the care and superintendence thereof. 

F'ay of librarian. When the township trustee employs a township libra- 
rian he has authority to make a contract to pay him so much per year. The 
poAver to appoint a librarian gives the trustee the power to secure the accept- 
ance of such appointment by paying a sufficient, but reasonable, compensation. 
There is no statute fixing a fee for such work, but the same is to be paid for out 
of the township's general fund for ordinary township purposes. — Bald-wi?i, 
Atty. Gen. 

Sec. 4533. Wlien open. 140. The library shall be open to all 
persons entitled to its privileges throughout the year, without 
regard to school session, Sundays and holidays excepted. 



ARTICLE 10— GENERAL PROVISIONS. 

SEC. SEC. 

4534. Suits, how brought. 453S. Appeals from count}- superintendent. 

4535. Costs. 4539. Oaths. 

4536. Process, how executed. 454°. AVomen eligible to school offices. 

4537. Appeals from township trustees. 454i- Bond binding. 

[1863, p. 3. Approved and in force March 6, 1S65.] 

Sec. 4534. Suits, how brought. 145. Suits brought on behalf of 
the schools of any township, town, or city shall be brought in the 
name of the State of Indiana, for the use of such towaiship, town, 
or city. 

Note. An action brought in the name of the State for the use of a city " as 
a distinct municipal corporation for school purposes " is rightly brought, 66 
Ind. 271. 

Sec. 4535. Costs. 146. Any person who shall sue for or on 
account of any decision, act, refusal, or neglect of duty of the 
township trustee, for which he might have had an appeal, accord- 
ing to the provisions of the preceding section, shall not recover 
costs. 

yote. The " preceding section " here referred to evidently means 6 4537. 
The costs are the costs made in the court. 

Sec. 4536. Process, how executed. 144. Process in such suits 
against a school township, tovrn, or city shall be by summons, 
executed by leaving a copy thereof with the trustee [or school 
trustees] of such township, town, or city ten days before the return- 
day thereof; and in case of an appeal, similar notice of the time 
of hearing thereof shall be given. 

N^te. Service of summons by reading to a trustee is insufficient and liable 
to be set aside, but a judgment by default upon such service would be valid, 
because it is sufficient notice to sustain a I'udgment. 



66 f\ APPEALS. [§4537 

Sec 4537. Appeals from township trustees. 164. Appeals shall be 
allowed from decisions of the [township] trustees relative to school 
matters to the county superintendents, Avho shall receive and 
promptly determine the same according to the rules which govern 
appeals from justices of the peace to circuit courts, so far as such 
rules are applicable; and their decisions of all local questions relat- 
ing to the legality of school meetings, establishment of schools, 
and the location, building, repair, or removal of school-houses, or 
transfers of persons for school purposes, and resignation and dis- 
missal of teachers, shall be final. 

1. Procedure in af peals — Notice io parties When a trustee has decided to 
do an act subject to appeal to the county superintendent, and has made a record 
oF his decision, he should give the people interested such information as they 
mav call for in order to afford them an opportunity to avail themselves of their 
privilege to appeal if they desire to do so. 

Time for appeal — Bond. An appeal must be taken within thirty days. That 
is the rule as to an appeal iVom the judgment of a justice of the peace. But any 
appeal may be granted by the officer to whom it is taken, after the expiration of 
the thirty days, when the party asking it has been hindered from takmg it by 
circumstances not under his control No bond is necessary in an appeal from 
a trustee to the county superintendent. 

Records — Transcript. When a trustee receives a written notice from an 
aggrieved party of an appeal from his decision he should immediately make a 
record of the same. He should make a certified transcript of his record, which 
should be a complete statement of the proceeding before him, and should file 
same, with all papers in the case, with the county superintendent, within twenty 
days. 

County siiperintendenfs porters and duties. When the county superintend- 
ent receives the documents from the trustee, if the case is such that he can 
determine the matter upon inspection of the documents, he should render judg- 
ment, make proper records, and notify trustee and appellant of his action. If it 
be necessary to permit the appellant to appear and present his case'by testimony 
and argument, the superintendent should set a day for the trial, not earlier than 
ten days from the date of notice of appeal, unless all parties signify their readi- 
ness to appear earlier; should notify trustee and appellant of the day set, and 
should issue summons to witnesses at the request of either party. While the 
superintendent has no power to compel witnesses to attend a trial and testify, 
it is as much the duty of persons so summoned to obey as it would be if the 
superintendent had the right to issue a writ of attachment. In case the location 
of a school-house is involved, the superintendent may view the premises, and 
seek such evidence as he may deem advisable, and may incorporate the informa- 
tion thus gained into the record as part of the evidence of the case. When a 
trustee improperly refuses to allow an appeal, the county superintendent may 
investigate and render judgment. — Smart, Supt. 

2. Location of houses. The county superintendent has no power, on appeal, 
to require a school-house to be erected on land not belonging to the township. 
Otherwise his decision is final, but only as to the particular case before him. 
The trustee may at once relocate at a different place, 44 Ind. 323 ; 67 id. 397. 
See 114 Ind. 214. After the location has been fixed by the county superintend- 
ent on appeal, the township trustee may change it, subject to appeal. But if 
there be no subsequent change after the county superintendent has determined 
upon the location, the trustee may be compelled, by mandate, to execute the 
order, 21 Ind. 317. See also § 4444, note 9, and § 4499, note 4. 

3. Jurisdiction of courts. Nothing in this act shall be so construed as to 
change or abridge the jurisdiction of any court in cases arising under the school 
laws of the State, and the right of any person to bring suit in any court in any 
case arising under the school laws shall not be abridged by the provisions of 
this act, § 4429. No appeal to the superintendent can be taken from the action 
of a trustee in making a contract with any one, either for building a school- 



§453^] EDUCATION. \_66^ 



house or like contracts, nor in regard to anv criminal or fraudulent act of a 
trustee, nor upon a mere breach of a contract, nor upon the dismissal of a 
teacher in a city or town. This is a question for the courts, 42 Ind. 206. 

A suit to set aside a contract for the building of a school-house, and to enjoin 
the domg of the work, on the ground of fraud on the part of the township trus- 
tee m making the contract, is properly brought m the name of the State for the 
use of the township; for the remedy provided bj an appeal to the county- 
examiner is not exclusive in such cases, the matter involved not being "a local 
question relating to the building of school-houses," 27 Ind. 119. But the remedy 
of appeal to the superintendent is exclusive when "relative to school matters," 
and for the purpose of preventing vexatious and expensive litigation it is provided 
that his decision shall be final in regard to certain enumerated subjects, 26 Ind. 
345. Regulations adopted bv persons in charge of a school are analogovis to 
by-laws enacted by municipal and other corporations, and both wall be annulled 
by the courts when found to be unauthorized, against common right, or palpably 
unreasonable, 82 Ind. 278. 

Upon any question arising out of the dismissal of a teacher, if the teacher 
has sufiered any damages, he may bring a suit against the township to recover 
whatever loss he has sustained. The court can onlj examine whether just cause 
existed for his dismissal, in order to see if he is entitled to damage for a wrong- 
ful dismissal, but can not reinstate him as a teacher, for as to that the super- 
intendent's decision is final. But on all those questions relating to the govern- 
ment and control of schools and school buildings, and school regulations, such as 
the establishment of schools, and the location, building, repair or removal of 
school-house, or transfer of persons for school purposes, or even the attachment 
of a person to a certain school, and resignation of teachers, his decision is final, 
and no action can be maintained in the courts touching the same. This must 
necessarily be so, for courts can not undertake the superintendency of school 
matters. Upon a question of fraud in holding a school meeting it is difficult to 
see how any question can arise so that courts can exercise any jurisdiction over 
it ; it is believed there is none. — Baldwin^ Atty. Ge7i. 

4. References. See § 4446, Jiote i ; 4499, notes 4/^6; § 4506. 

Sec. 4538, Appeals from county superintendent. 165. Appeals 
shall be allowed from the decisions of county superintendents to 
the superintendent of public instruction, on all matters not other- 
wise provided for in the next preceding section; and the rules 
that govern appeals from justices of the peace to the circuit courts, 
as to the time of taking an appeal, giving bonds, etc., shall be 
applicable in appeals from county superintendents to the superin- 
tendent of public instruction. 

1. Procedure. The same rules in regard to the time allowed for taking an 
appeal and for making transcript, etc., apply in case of appeals to the state 
superintendent as to the county superintendent. [See 4537, ;/o/e i.] But an 
appeal bond seems to be necessary in case of an appeal to the state superintend- 
ent. A bond for $25 would probably be sufficient. The county^ superintendent 
should make a transcript of the record, and send it, together with all papers in 
the case, to the state superintendent, wath his certificate indorsed thereon. He 
must specifically certify to the facts, for example, that A. B. applied for a cer- 
tificate on a certain day, that upon examination a license was refused on certain 
grounds, that the enclosed papers are those made by the applicant, upon which 
he was rejected. A copy of the questions used and the appeal bond should 
also be sent. In case a refusal to license is based upon the county superintend- 
ent's personal knowledge, he should make a statement of the facts, verified by 
affidavit, and forward it, together with corroborative testimony and the testi- 
mony given in favor of the accused. If an appeal is taken in due form the 
state superintendent may require the county superintendent to forward the 
papers to him, and upon refusal may visit the county and make an examination 
into the facts of the case, and render a decision that will be binding on all par- 
ties interested. — Smart, Supt. 

2. Trial by state superintendent. The appeal is tried by the superintend- 
ent of public instruction upon the papers sent up. Additional affidavits may 



669] OATHS WOiMEN ELIGIBLE TO OFFICES. [§§ 45 38— 454I 

be filed ^vith him and witnesses examined. Parties may appear before him and 
a complete trial be had. the same as before the county superintendent. An 
applicant for a license, who desires to appeal, should be allowed thirty days 
from the time the county superintendent's decision is rendered, not from the 
time of examination. If the license is denied because of immorality, the county 
superintendent should specify in what particular the immorality consists, and 
this is the onlv question that can be tried on appeal. On appeal the superin- 
tendent of public instruction can not grant a license; he can only order the 
countv superintendent to grant one. Should the latter refuse to grant it, a 
mandamus, at the instance of the teacher, would lie to compel him to obey the 
direction of the state superintendent. If an appeal is taken and the county 
superintendent reiuses to send up the papers, a mandamus will lie to compel 
him to send them. Or the superintendent of public instruction can visit the 
county and try the case there. Merely writing a letter to the superintendent 
of public instruction, bv the partv desiring to appeal, and stating that he appeals 
from the decision of the countv superintendent, does not constitute an appeal. 
The initiatory steps must be taken in the matter with the county superintend- 
ent. — B/oss, Siipt. 

Sec. 4539. Oaths. i66. School officers are hereby authorized 
and empowered to administer all oaths relative to school business 
appertaining to their respective offices. 

But school officers can not administer oaths upon any other than school 
matters, and it is held that directors can not administer them at all. County 
superintendents and trustees may administer oaths to trustees and teachers 
reporting to them, and to witnesses in trials before them. 

[iSSi S., p. 718. Approved April 14, iSSi,and in force September 19,1881.] 

Sec. 4540. Women eligible to school offices, i. Any woman, mar- 
ried or single, of the age of twenty-one years and upwards, and 
possessing the qualifications prescribes for men, shall be eligible 
to any office under the general or special school laws of this State. 

1. Co7istitutionality doubtful. The passage of this law implies that, in the 
judgment of the legislature, women are not eligible to such offices. I think 
that is the correct idea. Indeed, there is serious doubt whether the statute 
itself is constitutional. If a county superintendent of schools is a county offi- 
cer, a female, elected as prescribed by ^ 4424, will find herself confronted by our 
state constitution (§ 152), which reads: " No person shall be elected or ap- 
pointed as a countv officer who shall not be an elector of the county." The 
constitutional amendment of March 14, 1881, says, in substance: "In" all elec- 
tions not otherwise provided for by this constitution, every male citizen of the 
age of twenty-one, who shall have resided in this State six months, etc., etc., 
shall be entitled to vote in the township where he may reside." (§ 84). Thus 
it would seem that no one except a male is entitled to hold a county office. My 
attention is called to the appointment of a lady notary public ; but a notary is 
not a county officer. — Baldzuin, Atty. Gen. 

2. School trustee — Director. Attorney-General Baldwin expressed serious 
doubts of the constitutionality of the act authorizing the election of women to 
school offices, and held that they were ineligible to the county superintendency 
on the ground that county officers are required to be electors. This reasoning 
does not apply to the office of school trustee of a city or town, and until the act 
is decided by the courts to be unconstitutional there is no ground on which to 
question the eligibility of women to that office. Women who are voters at 
school meetings are eligible to the office of director. (§ 4498, note i.) They 
can not be township school trustees, since that office is held ex officio by the 
civil trustees. — Holcombe, Supt. 

Sec. 4541. Bond binding. 2. Any woman elected or appointed 
to any office under the provisions of this act, before she enters 
upon the discharge of the duties of the office, shall qualify and 
give bond as required by law and such bond shall be binding upon 
her and her securities. 



CHAPTER LVl. 



ELECTIONS. 



AKT. 

1. General Electiojis, 

2. Special Elections. 

3. To-jJ7iship Elections. 

4. Rccoiuiting. 



ART. 

0. Co 71 test. 

5a. Purity in Elections . 

ob. Bribery at Electio?is. 

5c. Crimes against purity of Electio7is. 



ARTICLE I— GENERAL ELECTIONS. 



SEC. 
467S. 
4679. 
4680. 
46S1. 
46S2. 
4683. 
4684. 
4685. 
46S6. 



4689. 
4690. 



4693- 
4694. 

4695- 
4696. 

%. 

4698^, 

4699. 

4700. 

4700a. 

4700^. 

4700c 

47oort. 
47ooi?. 

4700/. 
4700^. 
4700/; . 
47007. 

4700; • 

4701. 

470117. 

470 r^'. 

4701c. 

4701 rf. 

4701^'. 

4701/. 

4701^. 

4701/7. 

47017. 

4701.; • 

4701^. 

4701/. 

4701 ;«. 

4701 M. 

4702. 

4703- 

4703"- 



"When held — What offices filled. 

Certificate of clerk — Notice of sheriff. 

Qualification of electors. 

Who disfranchised. 

Soldiers, seamen, and marines. 

Residence. 

Elector's freedom from arrest. 

Betting- on elections. 

Place of voting — Voters in precinct — 

Boundaries. 
Boundaries changed — Notice. 
Officers of election. 
Inspectors and election board. 
Clerk of election. 
Forms. 

Oaths of members of election board. 
Oath, how administered. 
Inspector's duty — Administers oaths. 
Ballot-boxes. 

Inspection of boxes — Keys. 
Opening- and closing election. 
AVhere to vote. 

Registration. 

Proclamation. 

Sheriff and deputies — Duties. 

State board of election commissioners. 

County board of elections. 

Printing ballots. 

Name of candidate, when not printed. 

Preservation of certificates and peti- 
tions. 

Time in \vhich to file certificates. 

Governor notifies clerk. 

Publication of nominations. 

Governor and clerk's duties. 

Constitutional amendments. 

Ballots. 

Vacancy on ticket, ho-\v filled. 

Printer of ballots. 

Distributing ballots. 

Pay of clerk — Messenger. 

Delivering ballots to wrong person. 

Felony to take away ballots. 

Inspector not able to attend. 

Poll clerks and duties. 

Cards — Instructions. 

Special messenger with ballots. 

Inspector's neglect of duty. 

Loss of ballots. 

Preservation and burning of ballots. 

Election rooms and booths. 

Challenges — Affidavits. 

Arrest of illegal voter. 

Perjury. 



SEC. 

4703^. 

4704. 

4705- 
4705^. 

4705&. 

4705c. 

4705^. 

4705^. 

4706. 

4707. 

4708. 

4709. 

4709a. 

4710. 

4710a. 

4710^'. 

47 IOC. 

4710a. 
471 oc 

4710/. 

47icr- , 
4710/7.- 
4710/. 

4710/- 

4710A:. 

4710/. 

4710OT. 

4710M. 

47100. 

4711. 

4712. 

4713- 

4714- 

4715- 

4716. 

4717. 
4718. 
4719. 
4720. 
4721. 
4722. 

4723- 
4724. 

4725- 
4726. 

4727- 
472S. 

4729. 
4730- 



Employment of voter. 

Method of voting. 

Number of voters in election room. 

Number of voters in booth at once — 

Mutilated ballots. 
Poll clerks, when can prepare ballots. 
Deposit of ballots by inspector. 
Removal of stamps. 
Counting ballots. 
Defective ballots. 
Duty of board. 
Adjournments forbidden. 
Meals for election officers. 
Canvass of votes. 
Counting ballots. 
Destruction of election papers. 
Opening or destroying ballots. 
Unlawfully entering election room. 
Instructing elector how to mark his 

ballot. 
Revealing how elector voted. 
Inducing member of election board to 

violate preceding section. 
Removing or destroying cards, etc. 
Electioneering. 
Officer neglecting duty. 
Constitutional amendments. 
Disposition of affidavits. 
County and township elections. 
City and town election. 
Legal holidays. 
Laws repealed — Saving- clause. 
Witnesses to count — Misdemeanor. 
Certificate of judges. 
Care of ballots and papers. 
Clerk's and trustee's duty. 
Board of canvassers. 
Officers of board. 
Duties of board. 
Certificate. 
Tie vote. 

Defective papers — Duty of board. 
Certificate of election. 
Defective returns — Commissions. 
Certificates of votes for legislators. 
Certificate of election. 
Tie vote for legislators. 
Certificate to secretary of state. 
Duty of secretary of state. 
Secretary of state and governor, as to 

congressmen. 
Clerk's duty as to election of governor. 
Pav of officers. 



670 



671] GENERAL ELECTION. [§4678 

[iSSi S., p. 4S2. Approved April 21, iSSi, and in force September 19, 1S81.] 

Sec. 4678. Wlien held— What offices filled, i. A general elec- 
tion shall be held on the first Tuesday after the first Monday in 
November in the year one thousand eight hundred and eighty-two, 
and biennaliy thereafiier on the same day, at which election all ex- 
isting* vacancies in office, and all offices, the terms of which will 
expire before the next general election thereafter, shall be filled, 
unless otherwise provided by law. 

1. This section has no bearing on town or city elections. The time of hold- 
ing a city election is specified in §§ 3043 and 3052, 3053 ; and town elections in 
§ 3305. The decisions cited in these notes are applicable to them by analogy. 

2. The supreme court takes judicial notice of the number of votes cast at a 
general state election upon all questions of public affairs affecting the State, 60 
Ind. 505. 

3. A vacancy in an office that does not occur sufficiently long enough before 
the day of election to enable the giving of the proper notice can not be filled at 
such election; and ballots cast therefor are void, 17 Ind. 554; iS Ind. 346. 
^uare, if nominations are duly made and the names put upon the ballots under 
the present system, would not the election be valid.'' 

4. An officer may be elected if there is a vacancy; so where an appointee is 
filling an office, and where the term for which an incumbent was elected will 
expire before another election, 10 Ind. 62. 

5. To constitute a valid and operative resignation there must be an inten- 
tion to relinquish a portion of the term of the office, accompanied bv the act of 
relinquishment. A prospective resignation may be withdrawn at any time be- 
fore it is accepted; and after it is accepted it may be withdrawn by the consent 
of the authority accepting, where no new rights have intervened. Such a resigna- 
tion creates no necessity for an election, 10 Ind. 62. But it has been decided 
that a resignation maybe made to take effect in the future, and before an actual 
vacancy has been thereby created it may be filled, 78 Ind. 570. Where a 
vacancy was filled without notice of the withdrawal of the resignation it was 
held that the appointee was entitled to the office, 103 Ind. 444. 

6. Where the voters at an election know, or are legally bound to know, 
that a candidate is ineligible^ the election does not necessarilj^ result in a fail- 
ure ; for his opponent, if he have one who is eligible and if he receive any votes, 
although a minority of those cast, is elected, 12 Ind. 569; 14 Ind. 93; 15 Ind. 327; 
35 Ind. Ill ; 81 Ind. 558 ; 100 Ind. 489; 41 Ind. 572 ; 107 Ind. 374; 126 Ind. 51. 
This rule applies only where difierent persons are candidates for the same office, 
41 Ind. 572. 

7. The supreme court, and all courts in fact, takes judicial notice of the time 
of holding general elections, 73 Ind. 175 ; 83 Ind. 542. The courts take judicial 
notice, also, of the accession of the governor of the State, 12 Ind. 330. 

8. Vacancy in office of lieutena?it-governor, when may be filled, and contest 
over, 109 Ind. 79. 

9. A person elected to fill an office in which the term of the present in- 
cumbent has expired, but where he is holding over under the provisions of 
the constitution, § 225, is entitled to the office as soon as he qualifies, no Ind. 
122. 

10. An election held at any other day than that fixed by law is void, 40 
Ind. 469. 

11. Election laws are liherallv construed when necessary to reach a correct 
result, and their provisions treated as directory rather than as mandatory, 109 
Ind. 26; 69 Ind. 218. See § 4757, and notes. 

12. The legislature can neither elect nor appoint to an office which is in no 
manner connected with the discharge of legislative duties. The power to 
create an office, conferred upon the legislature by the constitution does not give 
it the power to fill an office by appointment after created, iiS Ind. 3S2, 426. 
449. The legislature can not create a supreme court conn/iissioner, iiS Ind. 350. 



§§ 4^79' 4680] ELECTIONS. [672 

But it may appoint trtistees for the benevolent institutions of the State, 119 Ind. 
386. 395. It can not fill the office of state geologist^ 121 Ind, 20; 122 Ind. 17; 
nor chief of the bureau of statistics, 121 Ind. 495; nor miiie inspector, which 
latter the governor may fill, 121 Ind. 20; 122 Ind. 17; but it may anthorize the 
state geologist to appoint an oil inspector, 27 N. E. Rep. 186. 

Sec. 4679. Certificate of clerk— Hotice of sheriE 2. The clerk of 
the circuit court shall, at least twenty days before such election, 
certify to the sheriff of his county what officers are to be elected ; 
and such sheriff shall give fifteen days' notice thereof, by posting 
up, at all usual places of holding such elections, a copy of such 
certificate, and by one publication thereof in some newspaper of 
his county, if any there be, and by delivering a copy thereof to the 
township trustee of each township within the county. But no 
election shall be invalidated by the failure of such clerk or sheriff 
in the performance of any of the duties enjoined by this section. 

1. This section does not apply to cities and towns; but the decisions, cited 
in the notes, by analogy, do apply. Notice in city, see ^ 3037 ; in town, § 3304. 

2. Neither the sheriff nor clerk of the county can bind the county in the 
ficrchase of election blanks, for postmg and giving notices under this section, 
93 Ind. 307. 

3. Failure to g\\e notice docs not render a general election void ; for the 
electors are bound to take notice when the general election will be held, and of 
the offices that will fall vacant before the next general election, 15 Ind. 327 ; 14 
Ind. 93; 19 Ind. 356; 69 Ind. 218. In case of resignation, see § 4678, note 2. 

4 A vacancy that does not occur sufficiently long enough before the day of 
election to enable the giving of the proper notice can not be filled at such elec- 
tion; and ballots cast therefor are void, 17 Ind. 554; 18 Ind. 346. See §4678, 
note 2. 

^uare, if nominations are duly made by all the political parties and the 
names of the nominees put upon the official ballots under the present system, 
would the election be void, under the facts just given .? 

5. A statute was passed with an emergency clause January 15, 1849, au- 
thorizing an election on the first of next March, directing the sheriff" to give 
notice forthwith, and authorizing the county commissioners to subscribe to 
stock to a railroad company if the election resulted favorably to such subscrip- 
tion. Notice was not given until February 15 and 22. While there was no 
decision on the point thus raised, the judge who wrote the opinion individually 
believed the election was void, 9 Ind. 310. See 69 Ind. 218. 

6. The sherift^'s certificate of posting up notices of an election is frima 
facie evidence of the fact, 39 Ind. 598. Proof of posting up notices may be made 
by the sheriffs return, even though it is unaccompanied by a copy of the notice, 
69 Ind. 324. 

Sec. 4680. Qualifications of electors, 3. All elections shall be 
free and equal ; and in all elections every male citizen of the United 
States, of the age of twenty-one years and upwards, who shall have 
resided in this State during the six months, in the township sixty 
days, and in the ward or precinct thirty days, immediately preced- 
ing such election ; and every male of foreign birth, of the age of 
twenty-one years and upwards, who shall have resided in the 
United States one year, and shall have resided in this State during 
the six months, in the township sixty days, and in the ward or 
precinct thirty days immediately preceding such election, and shall 



673] ELECTORS. [§§ 4681, 46S2 

have declared his intention to become a citizen of the United 
States, conformably to the laws of the United States on the subject 
of naturalization, — shall be entitled to vote in the township or pre- 
cinct where he may reside. 

1. This section, and the provision of the constitution, § S4, applies to cities 
and towns. 

2. A person is an inhabitant of that place which is the principal seat of his 
residence, business pursuits, connections, attachments, and political and munic- 
ipal relations. It embraces the fact of residence at a place with the intent to 
regard and make it his home. The act and intent must concur, and the intent 
may be inferred from declarations and conduct, 52 Ind. 361. 

3. It is a fixed rule that ^purpose to change^ unaccompanied by actual re- 
moval or change of residence, does not constitute a change of domicile. The 
fact and intent must concur, 52 Ind. 361 ; 32 Ind. iii. 

4. A voter will not lose his residence in Indiana by a mere intentio7i to 
leave the State, unaccompanied by a removal, 32 Ind. iii. 

5. Two things must concur to effectuate a change of domicile — first, an 
actual change ox rtmov^oi residence; and, second, «;/ intentio7i to make such 
change or removal permanent. If both these requisites concur in point of time, 
the place to which such removal is made becomes, instantly, the place of domi- 
cile, notwithstanding the partj^ may entertain a floating intention to return at 
some future period. — Story on Conflict of Laws, sections 46, 43. 

6. A student ^v^'\xo goes to a college town with the intention of remaining 
simply as a student, and who does not change his intention, does not acquire a- 
residence that entitles him to vote there; but v/here the intention is formed at 
any time to make such town his domicile, in good faith, and to the exclusion of 
all other places, he becomes a citizen, and, being otherwise qualified, is entitled 
to vote there, although he intends to remain only during a limited period, 113 
Ind. 148; 7 Mass. i ; 71 Pa. St. 302, S. C. 10 Am. R. 698, 78 111. 170; 53 la. 246,, 
76 Me. 158, S. C. 49 Am. R. 606; 10 Mass. 488. McCrary on Elections, §§ 38, 39, 
41. Cooley^ Const. Lim. 754. 

7. For rules upon domicile recognized in Indiana, see note to French vs. 
Lighty,9 Ind. 477; for the leading English case, see Summerville t-.v. Lord Sum- 
merville, 5 Ves., Jr., 750; and for American cases, see Guier vs. O'Daniel, i Am. 
L. Cases, 725; State x-^. Hallet,8 Ala. 159; Ringold x'^. Barley, 5 Md. 186; Smith 
t'-9.Croom,7 Fla.81; McKowen t^.v.McGuire, 15 La.637 ; Leach t'5. PillslDury, 15 
N. H. 137; Johnson vs. 21 Bales, etc., 2 Paine, 602; Jennison vs. Hapgood, 10 
Pick. 98 ; Williams vs. Whitney, 11 Mass. 423. 

8. The residence of the governor, secretary, auditor, treasurer, and attorney- 
general of the State is at Indianapolis, R. S. 1881, § 155, and Acts 1889, p. 125, 
§ 6; El. Sup. § 1802. 

Sec. 4681. Who disfranchised. 4. Every person undergoing a 
sentence of imprisonment on conviction for any felony or misde- 
meanor shall be disfranchised during the period of such imprison- 
ment. 

This section applies to cities and towns. See § 89. 

Sec. 4682. Soldiers, seamen, and marines. 5. No soldier, seaman, 
or marine, in the army or navy of the United States or of their 
alHes, shall be deemed to have acquired a residence in the State 
in consequence of having been stationed within the same ; nor shall 
any such soldier, seaman, or marine have the right to vote. 

This section applies to cities and towns. See >^ 85. 
43 



§§ 4683 4^86] ELECTIONS. [p74 

Sec. 4683. Residence. 6. No person shall be deemed to have 
lost his residence in the State by reason of his absence either on 
business of this State or of the United States. 

This section applies to cities and towns. See § 86. 

Sec. 4684. Elector's freedom from arrest. 7. In all cases, except 
treason, felony, and breach of the peace, electors shall be free 
from arrest in going to elections, during their attendance there, 
and in returning from the same. 

This section applies to cities and towns. See § 93. Arrest on civil process 
can not be made; and if made, the person arrested will be discharged on motion, 
6 B. 540; or released by a writ of habeas corpus, 6 B. 278. A general direction to 
arrest a defendant, on a capias given by the plaintiff to an officer, does not ren- 
der such plaintiff liable if the officer arrests the defendant when he is, at the 
time, exempt from arrest, i Ind. 293. 

[1S57, p. 35. In force August 24, 1857.] 

Sec. 4685. Betting on elections, i. Any person who shall bet or 
wager any money or other valuable property on the result of any 
election in this or any other State shall, upon conviction thereof, 
forfeit and pay to the State of Indiana, for the benefit of the com- 
mon school fund, any sum not less than the amount so bet or 
wagered nor more than twice said amount. 

1. This section applies to cities and towns. 

2. Under this section the offense is committed hy the mere betting alone, 
58 Ind. 8. Under the laws of this State, betting upon the result of any election 
is gaming, 58 Ind. 8 ; (overruling 47 Ind, 127); 12 Ind. 330. 

3. Money or property paid or delivered on the result of an election can not 
be recovered back, 63 Ind. 213. Nor can there be an action maintained to recov- 
er money on the value of an article bet or wagered, 63 Ind. 213. 

[1889, p. 157. Approved March 6, 1889, and in force May 10, 1889.] 

Sec. 4686. Place of voting — Voters in precinct — Boundaries, i. 

The county commissioners of each county in this State shall, at 
their first session after the taking effect of this act, divide the 
townships of their respective counties into election precincts, and 
establish the boundaries of the same. Such board of commission- 
ers shall designate at least one' place of holding elections in each 
township, and every township in which only one place of holding 
elections is designated shall constitute a precinct. There shall be 
but one voting place in a precinct. Each precinct shall contain, 
as nearly as practicable, two hundred electors, based on the num- 
ber of votes cast at the last election for presidential electors ; but 
no precinct shall contain more than two hundred and fifty electors. 
If at any election hereafter two hundred and fifty or more votes 
shall be cast at any voting place, it shall be the duty of the in- 
spector in such precinct to report the same to the board of county 
commissioners, who shall, at their next regular meeting, divide 
such precinct as equally as possible so that the new precincts 
formed thereof shall each contain two hundred electors, as nearly 
as practicable ; but no precinct shall contain more than two hun- 



6/5] PRECINXTS ELECTION OFFICERS. [§§ 4687, 4688 

dred ,and fifty electors, and shall report such division to the clerk 
of the circuit court of such county, and to the governor of the 
State, together with the estimated number of votes in each of the 
new precincts. If such board shall fail to act as herein directed, 
any qualified voter of the county may apply for a writ of man- 
damus to compel a performance of this duty. [El. Sup. § 1323.] 

1. This section supersedes the corresponding old sections of the act of 1881. 

2. This section applies to cities and towns. The precincts of the city or 
tOAvn, established by the council or board of trustees, should correspond with 
those established by the county commissioners, or vice versa, as near as possi- 
ble, so as to avoid confusion. But there is no legal compulsion to make the one 
adopt the arrangement of the other. The common council of the cities and 
board of trustees of towns correspond with the boards of county commissioners, 
and possess all their powers with respect to city and town elections. If not 
already done, the common council or board of trustees may at once, and 
should, proceed to divide the city or town into precincts, and give the proper 
notice. Once made, the precincts can not be changed, except under the condi- 
tions specified in this and the following sections. 

[1S91, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4687. Boundaries changed — Notice. 2. The board of com- 
missioners of any county may change the boundaries of any pre- 
cinct within such county, or divide any precinct into two or more 
precincts, or consolidate two or more precincts into one, or change 
any place of holding elections, whenever public convenience or the 
public good may require it: Provided, That no such change, divis- 
ion or consolidation shall be made after the June term of such 
commissioners' court next preceding an election: And provided, 
further, That no such change, division or consolidation shall be 
valid without giving due notice, at least one month before any 
election, by one publication in two newspapers published in said 
county, representing the two political parties which cast the high- 
est number of votes in the State at the last general election, and 
by posters put up in four of the most public places in each pre- 
cinct : And provided, further, That no precinct shall be enlarged so 
as to contain more than two hundred and fifty electors. 

1. This section supersedes the corresponding section of the act of 1881. It 
is applicable to cities and towns. 

2. No change can be made, probably, after the last meeting in June of the 
common council or board of trustees ; but this is a very doubtful statement. 

3. The clause prohibiting a change after the June term of the board next 
preceding any election does not apply where the re-adjustment of a precinct 
becomes necessary on account of a change in the boundary line between town- 
ships. Thus w^here the boundary line was changed in December next preced- 
ing the April election, by the addition of territory taken from an adjoining 
township, it was held that the persons residing upon such territory, being 
otherwise legal voters, were entitled to vote at such election in the precinct 
into which they had been cast, 109 Ind. 26. See § 4757, note 5. This is also 
true where a city or town extends or contracts its corporate limits. 

[1889, p. 157. Approved March 6, 1SS9, and in force May 10, 1SS9.] 

Sec. 4688. Officers of election. 3. Township trustees shall, by 
virtue of their office, be inspectors of elections in the precincts in 



§ 4689] ELECTIONS. [676 

which they respectively reside, and shall, prior to the opening of 
the polls in such precinct, appoint as judges of election two quali- 
fied electors of such precinct, who shall have been freeholders and 
resident householders therein for at least one year, or household- 
ers for at least two years next preceding such election, and who 
are members of different political parties and of the parties which 
cast the highest number of votes in the State at the preceding gen- 
eral election : Provided, That if at least one week or more prior 
to such election the chairman of the county central committee of 
either of the two parties that cast the largest number of votes in 
the State at the last general election shall designate a member of 
such party as judge, having the same qualifications as above pre- 
scribed, he shall be appointed, and such judges, together with the 
inspector, shall constitute a board of election. No person shall be 
eligible as a member of the board of election who has anything of 
value bet or wagered on the result of such election, or who is a 
candidate to be voted for at such election, or who is father, father- 
in-law, son, son-in-law, grandfather, grandson, brother, brother- 
in-law, uncle, nephew, first or second cousin of any candidate at 
such election. If at any time before, or during an election, it shall 
be made to appear to any inspector by the affidavit of two or more 
qualified electors of the precinct, that either of the judges is dis- 
qualified under the provisions of this act, he shall at once remove 
such judge and fill the place with a qualified person of the same 
political party as the judge removed; and in case such disqualified 
judge shall have taken the oath of office hereinafter prescribed, 
the inspector shall place such oath and affidavit before the next 
grand jury of the county. [El. Sup. § 1325.] 

1. This section supersedes the corresponding section of the act of 1881. It 
is applicable to cities and towns. 

2. The council or board of trustees must appoint one inspector and two 
judges in each precinct of the city or town. The city or town central com- 
mittee of either of the two parties that cast the largest number of votes in the 
State (not in the city or town) at the last general election may designate a 
member of such party as judge. 

3. This section is not void on the ground that it requires the judges of elec- 
tion to be selected from two opposing political parties having the highest num- 
ber of electors. Such judges are not officers within the meaning of the consti- 
tution, which prohibits the granting to any class of citizens privileges not 
granted to others, 118 Ind. p. 479. 

4. In an action by an officer in his official capacity the defendant can not 
defeat the action by showing that the election officers were disqualified to act, 
29 Ind. 118. 

Sec. 4689. Inspectors and election board. 4. Whenever any 
board of county commissioners shall designate more than one pre- 
cinct in any township it shall at the June term of said board, 
ne:?^t preceding any election, appoint in each precinct in which no 
township trustee resides, as inspector of such election, some qual- 
ified voter of such precinct, who shall have been a freeholder and 
resident householder in such precinct for at least one year, or a 



6'J'j'\ FORMS. [§§ 4690, 4691 

resident householder for at least two years next preceding such 
election. Such board of county commissioners shall hold a special 
session one week before each election, and shall fill all vacancies 
that may have occurred in the office of inspector, and shall fill any 
vacancy occurring thereafter at any regular or called session of the 
board previous to the election. Such appointed inspector shall, 
before the time of opening the election in his precinct, appoint two 
election judges, if the same have not already been appointed, as 
hereinbefore provided, in the same manner and under the same 
requirements as provided for township trustees acting as inspectors ; 
and such judges and inspectors shall constitute the board of elec- 
tion for such precinct. If any member of an election board shall 
fail to appear at the hour appointed for the opening of the polls, 
the remainder of the board shall select a member of his political 
party to serve in his stead : Provided, That, if the qualified electors 
of his party present at the polls shall nominate a qualified person 
for such vacancy, such nominee shall be appointed. If none of 
the members of an election board shall appear at the hour appointed 
for opening the polls, the qualified electors present shall elect a 
board viva voce, as nearly as possible in conformity with the pro- 
visions hereof [El. Sup. § 1326.] 

This section supersedes the old section of the act of 1881. It is applicable to 
cities and towns. 



Sec. 4690. Clerk of elections. 5. Such board of election shall 
appoint as poll clerks two qualified electors of such precinct, one 
from each of the two parties that cast the largest vote in the State 
at the last general election : Provided, That if, four days or more 
prior to such election, the chairman of the county central com- 
mittee of either of the two parties that cast the largest number of 
votes in the State at the last general election shall designate a mem- 
ber of such party as poll clerk, such nominee shall be appointed. 
[El. Sup. § 1327.] 

This section supersedes the old section of the act of 1881. It is applicable to 
cities and towns. 



Sec. 4691. Forms. 6. The auditor of each county in the State 
shall make out and cause to be delivered to the inspectors of the 
several precincts in their respective counties, at least ten days pre 
vious to any election, a suitable number of blank forms of poll 
books, containing one column headed "Names of voters," and an 
additional column headed ''Number of voters," [votes] and also 
forms of election returns, with the proper captions, forms of oaths, 
and forms of certificates and tally papers necessary to be used in 
all elections hereafter held in this State. [El. Sup. g 1328.] 

This section supersedes the old section of the act of iSSi. The city or town 
clerk prepares the city or town forms. 



§ 4692] ^LECTONs, [6yS 

Sec. 4692. Oatlis of members of election board. 7. Before any 
election shall be opened, the inspector and judges shall each make 
oath to support the constitution of the United States and of this 
State ; to faithfully and impartially discharge the duties assigned 
by law ; that they will not knowingly permit any person to vote 
who is not qualified, and not knowingly refuse the qualified vote 
of any elector, or cause any delay to persons offering to vote, 
further than is necessary to procure satisfactory information of the 
qualification of such person as an elector; that they will not dis- 
close or communicate to any person how any elector voted or how 
any ballot was folded, marked or stamped ; and that they are now 
and for one year next preceding have continued to be dona fide 
residents and freeholders, or bona fide householders, for at least 
two years, of the township in which such precinct is situated ; and 
that they have nothing of value bet or wagered upon the result of 
said election, and are not candidates at said election, and that they 
are not related to any person to be voted for at said election within 
the degrees named in section three of this act ; which oath shall 
be in writing or printed, and shall be subscribed and executed 
before some person authorized by law to administer oaths, which 
officer shall attach thereto his jurat; and such oath shall then be 
attached to the poll book, and with it return [returned] to the 
clerk's office of his county, as hereinafter provided. 

Which oath shall be in the following form : 
State of Indiana, 



County ^ 



I do solemnly swear (or affirm, as the case may be) that I will 
support the constitution of the United States and of this State; 
that I will faithfully and impartially discharge the duties as in- 
spector or judge of election assigned by law ; that I will not 
knowingly permit any person to vote who is not qualified, and 
will not knowingly refuse the vote of any qualified elector, or 
cause any delay to persons offering to vote further than is neces- 
sary to procure satisfactory information of the qualification of such 
person as an elector; that I am now and have been continuously 
for one year next preceding this date a bona fide resident free- 
holder (or a bo7ia fide resident householder for at least two years 
next preceding this date) of the township in which the precinct in 
which I am to act as a member of the election board is situated ; 
and that I will not disclose or communicate to any person how any 
elector has voted at such election, or how any ballot has been 
folded, marked or stamped ; that I have nothing of value bet or 
wagered upon the result of said election, and am not a candidate 
at this election, and am not related to any person to be voted for 
at this election within the degrees named in section three of the 
election law. 

Subscribed and sworn to before me this . . day of 



[El. Sup. § 1329] 



679] ELECTION BOARD BALLOT-BOXES. [§§4693 4695 

1. This section supersedes the old section of the act of 18S1. It is appli- 
cable to cities and towns. 

2. A failure by the election officers to take the oath is not sufficient to avoid 
the election, i El. Cas. (Ont.) 291. 

Sec. 4693. Oath, how administered. 8. If no person present 
be authorized by law to administer the oath of office, the inspector 
shall administer the same to the judges, and one of such judges 
shall then administer said oath to the inspector. [El. Sup. § 1330.] 

This section is exactly like the old section in the act of iS8i; supersedes it, 
and is applicable to cities and towns. 

Sec. 4694. Inspector's duty — Administers oaths. 9. The in- 
spector shall be chairman of such board, and, before the reception 
of any votes, shall administer an oath to the clerks of the election 
that they will faithfully discharge their duties as such. After the 
organization of the board of elections the inspector may administer 
all necessary oaths which may be required in the discharge of its 
duties, and all oaths shall be written or printed, and shall be signed 
by the persons making such oaths in the presence of such board 
of elections, and the person administering such oaths shall affix 
his jurat thereto, and said affidavit shall be attached to and re- 
turned with the poll lists to the office of the county clerk. The 
oaths herein prescribed for the clerk of elections shall be in the 
following form, namely: 
State of Indiana, 1 

.'.... County. J ^^' 



I do solemnly swear (or affirm as the case may be) that I will 
faithfully and honestly discharge my duties as clerk of the election 
in . . . precinct and . . . ward ( . . . or . . . township) in 
. . .. county, Indiana, and that I will not disclose or communicate 
to any person how any elector voted, or how any ballot was folded, 
marked or stamped. 



Subscribed and sworn to before me this . . . day of 



[EL Sup. § 1331.] 

This section supersedes the section in the act of 1881; and it is applicable to 
cities and towns. 

Sec. 4695. Ballot-boxes. lO. The board of county commissioners 
of each county shall provide, at the expense of the county, two 
ballot boxes, one painted red, for the reception of the ballots pre- 
pared by the state board of election commissioners, and one painted 
white, for the reception of the ballots prepared by the county 
board of election commissioners for each precinct; each ballot-box 
shall have at least two locks of different kinds and combinations, 
so that the key of one will not unlock the other, and be otherwise 
so constructed as to contribute toward the prevention of fraud. 
[El. Sup. § 1332.] 



§g 4696, 4697] ELECTIONS. [680 

This section is applicable to cities and towns, and supersedes the corre- 
sponding section in the act of 18S1. The common council and board of town 
trustees provide the ballot boxes for the city and town. 

Sec. 4696. Inspection cf boxes — Keys. 11. An opening shall be 
made in the lid of each box sufficient only for a single ballot; 
and, at the time the election is opened, the inspector and judges 
shall see that there are no ballots in the box before the voting 
begins, and shall thereupon securely lock the box, and give one 
key to one of the judges who is in politics opposed to the inspector, 
the inspector retaining the other key; and the same shall not be 
again opened until the polls are closed,- and the board is ready to 
immediately proceed with the counting. [El. Sup. g I333-] 

This section supersedes the corresponding section in the act of 1S81 , and is 
applicable to cities and towns. 

Sec. 4697. Opening and closing election. 12. The election shall 
be opened in the forenoon at the hour of eight o'clock and con- 
tinue open until four o'clock in the afternoon, after which the 
board may close the election at any time, when all the electors 
have voted, or when fifteen minutes have passed without a vote 
having been tendered; but the polls shall, in no case, be kept open 
after six o'clock of the afternoon; and the polls shaU not be closed 
after four o'clock and before six o'clock except by the unanimous 
consent of all the members of the election board ; but whenever 
the polls are closed, proclamation must be made of the fact of such 
closing by the inspector, to the people outside, in a loud and audi- 
ble tone of voice, and a minute of such proclamation, and of the 
time when the same was made, must be entered on the tally 
papers by the clerks, and after such minute has been made, no 
more votes shall be received : Provided, That upon the petition of 
twenty legal voters and householders of any precinct in the State, 
presented to the board of county commissioners at their June 
session next preceding any election in the county in which such 
precinct or precincts are situate, petitioning said board for the open- 
ing of the election at the hour of six o'clock in the forenoon, it is 
made the duty of the board of commissioners to grant and enter 
of record the prayer of such precinct petitioners ; and it is made 
the further duty of the board to direct the auditor of the county to 
publish in two newspapers of general circulation published in said 
county, representing the leading national political parties opposed 
to each other, for three successive weeks, a notice setting out fully 
the name of the precinct or precincts, and the township, town or 
city 'u\ which such precinct or precincts are situated, so petitioning 
for the opening of the polls at six o'clock in the forenoon, and the 
board shall enter of record an order requiring the polls of every 
such precinct to be opened accordingly : Provided, further, That 
in all cities and in incorporated towns having a population of one 
thousand or more, as shown by the last United States census, the 



68 1] REGISTRATION. [§g 4698, z^.f^o8^ 

polls shall be opened at six o'clock in the forenoon on the day of 
such election and closed at six o'clock in the afternoon of said day. 
[El. Sup. § 1334.] 

1. This section supersedes the corresponding section in the act of 1S81. It 
is applicable to cities and towns. The petition, in the case of a city or town, is 
directed to the common council or board of trustees; and the clerk of the city 
or town gives the notice required by this section. 

2. Section 13 of the act of 1889 [El. Sup. § 1335] concerning the registration 
of certain persons Avas declared to be unconstitutional by the supreme court, 
125 Ind. 281. See § 4698^?. 

3- Handing a ballot to a voter a few minutes before 6 or S a. m., which is 
cast after either hour, does not render the ballot void, 4 Australian Jur. R. 166. 

4 Statute as to time of closing is directory, and departure from its pro- 
visions will not invalidate an election, 19 O. S. 25. Closing for an hour at noon, 
in the absence of fraud, will not invalidate election, Ibid; see Am. L. Reg. 88. 

[18S1, p. 482. Approved April 21, iSSi, and in force September 19, 1S81.] 

Sec. 4698. Where to vote. 21. Each elector shall vote by ballot, 
in the precinct wherein he resides. 

[1S91, p 350. Approved March 9, 1891, and in force June 3, 1891.] 
Sec. 4698<2. Eegistration. i . Each elector shall vote by ballot 
in the precinct wherein he resides. Any person who having been 
a resident of Indiana, and a qualified voter therein at any general 
election, shall have absented himself from the State for a period 
of six months or more since last so voting, or who shall have gone 
into any other State or sovereignty with the intention of voting 
therein since last so voting, or during any absence in another State 
or sovereignty, shall have voted therein, since last so voting, and 
also any person who shall not have been a bona fide resident of the 
county in which he resides at least six months before any election, 
shall before being entitled to vote at such election in this State 
register in the office of the clerk of the circuit court of the county 
in which he resides, a notice that he claims to be a legal voter in 
such county. Such registration shall be made at least fifty-nine 
days prior to any such election and the notice shall state such per- 
son's name, age, and place of residence (by which shall be under- 
stood his lodging place) both at the time of registration, and dur- 
ing the period of four months prior thereto. The notice shall be 
the form following, and shall be sworn to before such clerk. 
State of Indiana, 1 

County, j 

I, . . . , the subscriber hereto, hereby declare that I am a quali- 
fied elector under the laws of Indiana, entitled to vote at the elec- 
tion to be held on the . . . day of . . . ; that I was . . . 
years of age on my last birthday; that my lodging place is now 
(here insert exact location); that four months prior to this date my 
lodging place was (here insert exact location); that after leaving 
said location I removed to (here insert exact location), and I am 
now a bona fide resident of the precinct in which I lodge : Pro- 



§ 4699] ELECTIONS. [682 

vided, That the provisions of this section respecting such registra- 
tion and notice shall not apply to any voter who, six months or 
more previous to any election, shall have registered with said clerk 
a notice declaring his intention to hold his residence in this State 
during a contemplated absence. And that during such absence 
he will not exercise the right of suffrage elsewhere, and which 
notice shall be as follows, and shall be sworn to before said clerk. 
State of Indiana, \ 
County. I ' 



I, . . . , the subscriber hereto, a qualified voter of (here insert the 
name, his precinct, ward, township, town, or city), in said county, 
intending to absent myself, do hereby declare my intention to hold 
my residence as a voter in said State, and that I will not exercise 
the right of suffrage elsewhere during my absence. 

On the filing of any notice, as provided for in this section, it 
shall be the duty of such clerk to enter the name and residence of 
said elector and date of the filing of said notice in a book furnished 
for said purpose, to be open at all times to the inspection of the 
public, and safely preserve said original notice, and deliver a certi- 
fied copy of the same to the elector so registering, and on demand 
of any challenger or member of the election beard such elector 
shall be required to produce the same before being allowed to vote. 
No person shall register for any other person or in the name of any 
other person or present the copy of the register for any other per- 
son at a polling place, or induce, hire or advise any other person 
not to register who may be required to register as above. Any 
person violating the provisions of this section, or who shall vote or 
attempt to vote without having been registered when required to 
do so as above, shall be guilty of a felony, and upon conviction, 
shall be imprisoned in* the state prison for not less than one or 
more than five years and be disfranchised for any determinate 
period. No elector shall be at any cost or charge for such regis- 
tration or certificate thereof, and the clerk shall be allowed twenty- 
five cents and no more for each registration and certificate thereof, 
to be in full for all services connected therewith, which allowance 
shall be made out of the county treasury by the board of county 
commissioners on itemized statements sworn to by said clerk. 

This section seeks to avoid the objections raised to section 13 of the act of 
1889 (Acts 1889, p. 163 ; El. Sup, § 1335), but a careful reading of the opinions 
delivered in the case holding that section void shows that such objections are 
not met bv the provisions of this section. The entire section is clearly void, 
125 Ind.2Si. 

[1889, p. 157. Approved March 6, 18S9, and in force Maj 10, 1S89.] 

Sec. 4699. Proclamation. 14. Before receiving the ballot of 
any elector, the board of election shall cause to be proclaimed that 
such election is opened. [El. Sup. § 1336.] 

This section supersedes the corresponding section of the act of 1881, and 
applies to cities and towns. 



683] ELECTION SHERIFFS. [§§4/00, 4/00^ 

[1S91, p. 124. Approved Tvlarch 6, 1S91, and in force June 3, 1S91.] 

Sec. 4700. Sheriff and deputies — Duties. 15. It shall be the 
duty of the sheriff of each county to appoint, five days prior to 
each election, two special deputies for each precinct in the county, 
to be known as election sheriffs, who shall attend the polling 
places in their respective precincts, from the opening of the polls 
to the conclusion of the count. It shall be their duty to preserve 
order at the polls and enforce the provisions of the election law 
under the direction of the election board, and make arrests on the 
demand of a member of the board, or on affidavit, as hereinafter 
provided. One of such election sheriffs shall be chosen from each 
of the two parties that cast the largest number of votes in the 
State at the last general election ; and if at least five days prior to 
such election, the chairman of the county central committee of 
either of such parties, shall nominate a member of his party for 
election sheriff in any«precinct, such nominee shall be appointed. 
If any election sheriff shall fail to appear at the opening of the 
polls, the member or members of the election board of his political 
party shall appoint a person to act in his place. Compensation of 
one dollar and fifty cents per day shall be allowed to each election 
sheriff by the board of county commissioners, but no such election 
sheriff shall be allowed for more days' service than members of the 
election board in the same precinct are allowed. No other peace 
officers of the State, or any division thereof, shall be allowed within 
fifty feet of the polls, except to serve process of courts or to vote, 
unless summoned by the election sherifis. No person other than 
the election officers shall remain within fifty feet of the polls, ex- 
cept when voting: Provided, That each pohtical party may appoint 
one challenger and one poll-book holder for each precinct, who 
shall be entitled to stand at the sides of the chute next to the chal- 
lenge window. Such challenger and poll-book holder shall be ap- 
pointed in writing by the chairman of the county or other local 
committee of their political party, and shall produce written 
appointments on demand of a member of the election board. It 
shall be lawful for a political party to pay such challenger and poll- 
book holder not more than three dollars for services at any elec- 
tion, but not more than one person of any ojie party shall be paid 
for services in either such capacity in any precinct, and no chal- 
lenger or poll-book holder shall receive any compensation for such 
services, except from the political party he represents. 

[1889, p. 157. Approved March 6, 1SS9, and in force May 10, 1S89.] 

Sec. 4700(3:. State board of election commissioners. 16. The 

governor of the State, and two qualified electors by him appointed, 
one from each of the two political parties that cast the largest 
number of votes in the State at the last preceding general elec- 
tion, shall constitute a state board of election commissioners. 
Such appointments shall be made at least thirty days prior to each 



§§ 4/00^, 4/00^] ELECTIONS. [684 

general election, and if, prior to that time, the chairman of the 
state central committee of either of such parties shall nominate 
in writing, a member of his own party for such appointment, the 
governor of the state shall appoint such nominee. In case of 
death or disability of either appointee, the governor of the State 
shall notify the chairman of the said central committee of such 
appointee's political party, and such chairman may, within three 
days thereafter, recommend a successor, who shall thereupon be 
appointed: Provicied, That if such chairman shall fail to make 
recommendations of appointment within the time specified, the 
governor of the State shall make such appointment of his own 
selection from such political party. It shall be the duty of said 
board to prepare and distribute ballots and stamps for election of 
all officers for whom all the electors of the State are entitled to 
vote, in compliance with the provisions of the election law. The 
members of such board shall serve without compensation. [El. 
Sup. § 1338.] 

This section has no corresponding section in the act of 1881. It is not ap- 
plicable to cities or towns. 

Sec. 4700(^. County board of elections. 17. Jn each county in 
the State, the clerk of the circuit court and two persons by him 
appointed, one from each of the two political parties that cast the 
largest number of votes in the State at the last general election, 
shall constitute a county board of election commissioners. Said 
appointments shall be made in all respects as appointments to the 
state board of election commissioners are required to be made by 
the governor of the State, except that the privilege of nomination 
shall belong to the chairmen of the county central committees of 
the two parties aforesaid. It shall be the duty of such board to 
prepare and distribute ballots for election of all officers to be voted 
for in such county other than those who are to be voted for by all 
the electors of the State, in compliance with the provisions of this 
act. The members of such board shall serve without compensa- 
tion. [El. Sup. § 1339.] 

This section has no corresponding section in the act of 1881. It is applica- 
ble to cities and towns. The town or city clerk acts in place of the clerk of the 
circuit court, § 47io;«; and they appoint the commissioners, who, with them- 
selves, respectively constitute the town and city board of elections. 

Sec. 4700^. Printing ballots. 18. The said board of election 
commissioners shall cause to be printed on the respective ballots 
the names of the candidates nominated by the conventions of any 
party that cast one per cent, of the total vote of the State at the 
last preceding general election, as certified to said boards by the 
presiding officer and secretary of such convention, or in case of 
primary election, by the chairman and secretary of any county or 
township committee ; and also the names of any candidates for any 
office when petitioned so to do by electors quahfied to vote for 



68 5] PRINTING BALLOTS. [§'4/00^ 

such candidates, as follows : For a state officer, or any officer for 
whom all the electors of the State are entitled to vote, five hun- 
dred petitioners ; for a representative in congress from any congres- 
sional district, two hundred petitioners ; for a county officer, mem- 
ber of the general assembly, circuit judge or prosecuting attorney, 
twenty-five petitioners ; for an officer of a township, ward or other 
division less than a county, twenty petitioners. The signatures to 
such petition need not be appended to one paper, but no petitioner 
shall be counted, except his residence and post-office address be 
designated. Such petition shall state the name and residence of 
each of such candidates ; that he is legally qualified to hold such 
office ; that the subscribers desire and are legally qualified to vote 
for such candidates; and may designate a brief name or title of the 
party or principle which said candidates represent, together with 
any simple figure or device by which they shall be designated on 
the ballots. The certificate of nomination by a convention or 
primary election shall be in writing, and shall contain the name of 
each person nominated, his residence and the office for which he is 
nominated, and shall designate a title for the party or principle 
which such convention or primary election represents, together 
with any simple figure or device by which its list of candidates may 
be designated on the ballots ; said certificate shall be signed by the 
presiding officer and secretary of such convention, or by the chair- 
man and secretary of the county, city or township committee, who 
shall add to their signatures their respective places of residence, 
and acknowledge the same before an officer duly authorized to 
take acknowledgments of deeds. If the certificate of nomination 
of any state convention shall request that the figure or device 
selected by such convention be used to designate the candidates 
of such party on the ballots for all elections throughout the State 
such figure or device shall be so used until changed by request of 
a subsequent state convention of the same party. Such device 
may be the figure of a star, an eagle, a plow, or som.e such appro- 
priate symbol, but the coat of arms or seal of the State or of the 
United States, the national flag, or any other emblem common to 
the people at large shall not be used as such device. A certificate 
of such acknowledgment shall be appended to such instrument. 
In case of death, resignation or removal of any candidate subse- 
quent to nomination, unless a supplemental certificate or petition 
of nomination be filed, the chairman of the state, county, city or 
township committee shall fill such vacancy. In case of a division 
in any party, and claim by two or more factions to the same party 
name, or title, or figure, or device, the board of election commis- 
sioners shall give the preference of name to the convention held at 
the time and place designated in the call of the regularly constituted 
party authorities, and if the other faction shall present no other 
party name, title or device the board of election commissioners 
shall select a name or title, and place the same before the list of 



§ 4700^] ELECTIONS. [6S6 

candidates of said faction on the ballot, and select some suitable 
device to designate its candidates. If two or more conventions be 
called by authorities claimed to be the rightful authorities of any 
party, the proper board of election commissioners shall select some 
suitable devices to distinguish one faction from the" other, and print 
the ballots accordingly: Provided, Jwwever, That if any political 
party entitled to nominate by convention shall in any case fail to 
do so, the names of all nominees by petition for any office who 
shall be designated in their petitions as members of and candidates 
of such party, shall be printed under the device and title of such 
party on the ballots, as if nominated by convention. Certificates 
and petitions of nomination of candidates for offices to be voted 
[for] by the electors of the entire State shall be filed with the 
governor of the State. Certificates and petitions of nomination of 
candidates for offices to be voted for by electors of any district or 
division of the State exclusively shall be filed with the clerks of 
the circuit courts of the counties or county included in or including 
such district or division. [El. Sup. § 1340.] 

1. This section is applicable to cities and towns. It has no corresponding 
section in the act of 18S1. 

2. A nomination made by persons not entitled to vote has been held to be 
invalid, even though at a previous election they were qualified and voted, 9 
Supr.Ct. Rep. (N. S. Wales) 169. 

3. One who has signed a petition to secure the printing of the ticket on the 
official ballot can not defeat the petition after it is filed by withdrawing his 
name, even though it reduces the number below that required, nor by signing a 
remonstrance, which has the same effect as withdrawing the remonstrator's 
name, 30 W. R. (Eng.) 923, S. C. 8 Q^ B. Div. 450; 51 L.J. Q^ B. 335; 46 J. P. 
390. Same principle, 24 Ind. 146. 

4. Failure to state, in a ward nomination, that the ward is within the citv 
Avill not vitiate the nomination, Wigmore, Australian Ballot System, p. 187 ; 
Browning (Victoria) p. 170. A substantial compliance with the statute is all 
that is required, 5 W. W. & A'B (L) (Victoria) 143. 

5. A statute required all voters to be registered, and the registry number of 
the nominee was required to be inserted in the nomination paper. By mistake 
the wrong registry number was inserted in that paper. It was held that the 
defect was fatal, the error not being a clerical one, nor open to a different inter- 
pretation, and that the nomination was properly disallowed, 42 L. T. (N. S.) 
776, S. C. 5 C. P. Div. 253; 49 L. J. (C. P.) 474; 29 W. R. 102; 44 J. P. 587. 
Disapproved, 24 Journal Juris. 293. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4700^. Name of candidate, when not printed. 19. If any 

certificate or petition of nomination shall contain the name of more 
than one candidate for any office to be filled, neither name shall be 
printed as a candidate for such ofifice. If any person shall join in 
nominating by petition more than one nominee for any office to be 
filled, such person shall not be counted as a petitioner for either 
nomination. If any person has been nominated as a candidate for 
any office by convention, and, also, as a candidate for the same 
office by petition, his name shall be placed on the ballot but once, 
to Avit: In the list of candidates nominated by such convention; 



68/] PRINTING BALLOTS. [§§4700^ 4/00^ 

and the place occupied by his name in such petition shall be left 
blank: Provided, That if such candidate shall, in writing, prior to 
the last day for filing nominations, request that his name be printed 
as nominated by petition, it shall be so printed, and shall be 
omitted from the list nominated by convention. 

This section applies to cities and towns. It has no corresponding section in 
the act of iSSi. 

Sec. 4700^. Preservation of certificates and petitions. 20. The 

governor of the State and county clerks shall cause to be preserved 
in their respective offices all certificates and petitions of nomina- 
tions filed therein under the provisions of this act for six months 
after the election for which such nominations were made. 



[18S9, p. 157. Approved March 6, 1889, and in force May 10, 1889.] 

Sec. 4700/ Time in which to file certificates. 21. Certificates 
and petitions of nomination filed with the governor of the State, 
shall be filed not more than sixty days,, and not less than twenty 
days, before the day fixed by the law for the election of the per- 
sons in nomination. Certificates and petitions of nomination herein 
directed to be filed with the clerk of a county, shall be filed not 
more than sixty and not less than fifteen days before election. 
[El. Sup. § 1343.] 

1. The last half of this section is applicable to cities and towns. It has no 
corresponding section in the act of 1881. 

2. Where a nomination paper was not filed within the requisite time the 
election was held void, although no other candidate was nominated and voted 
for, I Australian Jur. R. 56. See 4 Australian Jur. R. 151. Nominations made 
onlv nineteen days before election are invalid, 5 Australian Jur. R. 35. See 9 
Supr. Ct. R. (N. S. Wales) 177 ; i C. P. Div. 670, S. C. 45 L. J. C. P. 550 ; 35 L. 
T. 58. Nomination certificates may be handed back to have omissions svip- 
plied or mistakes corrected, 5 Victoria L, Rep. 334; 5. W. W. & A'B (L) 145; 
Melbourne Argus, Sept. 15, 1868. See Hodgin's El. Cas. (Can.) 705; and L. R. 
9 C. P. 720, S. C. 43 L. J. C. P. 370; 30 L. T. 610 ; 22 W. R. 707. " When cor- 
rected, filing dates from the date of correction, i C, P, Div. 670; S. C. a.5 L.J. 
C.P. 550; 3SL.T.83. 

Sec. 4700^. Governor notifies clerk. 22. Not less than eighteen 
days before an election of the State to fill any public office for 
which all the electors are entitled to vote, the governor of the 
State shall certify to the county clerk of each county the narAe 
and the place of residence of each person nominated for such 
office, as specified in the certificates and petitions of nominations 
filed with the governor of the State, and shall designate therein 
the device under which the group or list of candidates of each 
party will be printed, and the order in which they will be arranged. 
[El. Sup. § 1 344-] 

This section is not applicable to cities and towns. It lias no corresponding 
section in the act of iS8i. 



§§ ^yOOh, 47002] ELECTIONS. [688 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4700/^. Publication of nominations. 23. At least seven days 
before an election to fill any public office at which the electors of 
any county are entitled to vote, the county clerk of such county 
shall cause to be published in at least two weekly newspapers 
within the county, the nominations to office, certified to him by 
the governor of the State, and also those filed with the county 
clerk. He shall make two publications in each of such newspapers 
before election ; one of such publications in each newspaper shall 
be upon the last day upon which such newspaper is issued before 
election. Such publication shall be made in two newspapers rep- 
resenting the political parties that at the last preceding general 
election cast the largest number of votes in the State, if such papers 
there be : Provided, That in all cities where a daily paper is printed 
and published, such notice shall also be published twice, as afore- 
said, in two daily papers representing such political parties, if such 
there be. The list of nominations published by the county clerks 
shall be arranged, as far as practicable, in the order and form in 
which they will be printed upon the ballots, and shall designate 
the devices under which the group or list of candidates of each 
party will be printed. 

1. There is no section corresponding to this one in the act of 1881. It is 
applicable in part to towns and cities; the town and citj clerks acting in place 
of the county clerk. 

2. Where a toAvn clerk was required to give notice "seven days at least" 
before an election, and nominations were to be filed at least two whole days 
before the election; and the election was to occur on November i,and the clerk 
gave notice October 22, and required nominations to be sent by October 28, it 
was held that the clerk could not fix the date of sending in nominations, and 
that a nomination filed October 29 was valid, 15 L.T. N. S. 289. So where a 
statute required nominations to be made "seven days at least" before election 
day, Sundays being excluded, it was held that the election occurring on Mon- 
day, November i, the last dav for receiving nominations was Friday, October 
22, I C. P. Div. 670; S. C. 45 L.J. C. P. 550; 35 L. T. 58. The reckoning was 
based upon the phrase " at least," which requires " seven clear days to intervene, 
exclusive of the days of election and nomination," 9 Supr. Ct. R. (N. S. Wales) 
177- 

3. A statute required a town clerk to post nominations in his office on the 
day after nomination. It was held that this w^as directory only, and a failure to 
post until the second day did not avoid the election, 4 Ontario Prac. Rep. 218. 

4. An election notice was published in a supplement to a proper newspaper 
for such notice, which supplement was described as an advertising sheet and 
sent only to special subscribers, though obtainable by all before the time for 
nominations. It was held that "the fact that the advertisement appeared in a 
part of the paper distinct from the ordinary news did not affect the question," 
I Australian Jur. R. 56. See 2 N. S. Wales L. Rep. 87. 

[1889, P- 157- Approved March 6, 1889, and in force May 10, 1S89.] 

Sec. 4700£ Governor and clerk's duties. 24. The governor of 
the State shall not certify the name of a candidate whose certifi- 
cate of nomination shall have been filed in his office who shall 
have notified him in a writing signed and executed with the for- 
malities prescribed for the execution of an instrument to entitle it 



6Sg] BALLOTS. ' [§§ 4700/', 4701 

to record that he will not accept the nomination contained in the 
certificate or petition of nomination. The county clerk shall not 
include in the publication to be made according to section twenty- 
three [§ 4700//] hereof, the name of any candidate whose certificate, 
or petition of nomination shall have been filed in his office who 
shall have notified him in like manner that he will not accept the 
nomination. The names of such candidates shall not be included 
in the names of the candidates to be printed in the ballots as here- 
inafter provided. [El. Sup. § 1346.] 

There is no corresponding section to this one in the act of 1881. The town 
and city clerks act wherever the county clerk is required to perform a duty. 

Sec, 470 Oy. Constitutional amendments. 25. Whenever a pro- 
posed constitutional amendment or other question is to be sub- 
mitted to the people of the State for popular vote, the secretary 
of state shall duly, and not less than thirty days before election, 
certify the same to the clerk of each county in the State, and the 
clerk of each county shall include the samxC in the publication pro- 
vided for in section twenty-three in this act. [El. Sup. § 1347.] 

There is no corresponding section to this one in the act of 1881. This sec- 
tion is applicable to cities and towns, especially when a vote is taken on the 
construction of water-works under § 3265. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4701. Ballots. 26. The board of election commissioners 
shall cause the names of all candidates of their respective jurisdic- 
tions to be printed on ©ne ballot, all nominations of any party or 
group of petitioners being placed under the title and device of 
such party or petitioners as designated by them in their certificate 
or petition, or if none be designated under some suitable title and. 
device. The ballots shall be of uniform size and of the same qual- 
ity and color of paper, and sufficiently thick that the printing can. 
not be distinguished from the back. All ballots prepared by the 
state board of election commissioners shall be printed on red tinted 
paper and put up in blocks of one hundred each. All ballots pre- 
pared by the county boards of election commissioners shall be 
printed on white paper. If the same device for designating candi- 
dates be selected by two parties or groups of petitioners, it shall be 
given to the one which first selected it, and a suitable device shall be 
selected for the other. The device named and list of candidates of 
the Democratic party shall be placed in the first column on the left 
hand side of said ballot ; of the Republican party in the second 
column ; of the Prohibition party in the third column, and of any 
other party in such order as the board of election commissioners 
shall decide. The device of each party shall be enclosed in a 
square of not less than one and one-half inches on each side, and 
shall be placed at the head of the list of candidates of the party. 
Immediately under it shall be placed the name or title of the party 



§ 470I^] ELECTIONS. [69O 

ticket, and immediately under the name or title the list of candi- 
dates of the party, such names being placed three-fourths of one 
inch apart from center to center of the name, the name of each 
candidate having immediately on its left a square three-eighths of 
an inch on each side, and the general arrangement of the ballot 
shall conform as nearly as possible to the following : 



DEVICE. 



Democratic Ticket. Republican Ticket. Prohibition Ticket. 

For Governor, For Governor, For Governor, 

i D^ I Conrtlani C. MatsoE. 1^1 Aim P. Hovey. i ^^^^ i Josepli D. Huglies. 

For Lieut.-Governor, For Lieut. -Governor, For Lieut.-Governor, 

151^1 William E. Myers. \^A Iral.Cliase. w^o^\ Row (lale. 

1. This section is applicable to cities and towns. It is very radically differ- 
ent from the corresponding section in the act of 1881. The decisions under the 
old section (w^hich can be of no aid in construing this section), are as follows: 
29 Ind. 308 ; 35 Ind. 275 ; 39 Ind. 363 ; 99 Ind. 261. 

2. Under the old statute it was held that ballots so printed on the inside 
that lawful names and designations could be seen through the paper were not 
illegal, 65 Ind. 393. See 99 Ind. 261. 

3. A law requiring a nvimber to be placed on a ballot, to correspond with 
the number set opposite the name of the person casting it, on the poll book, is 
unconstitutional ; because it violates the secrecy of the ballot, 38 Ind. 89. 

4. In Canada it has been decided that the omission of the name of one can- 
didate from the ballot does not per se vitiate the election ; that there must be 
reasonable evidence that the result of the election had been thereby affected; as, 
for example, that votes would have been cast for him sufficient to have changed 
the result, 4 Ontario Prac. Rep. 218; 6 Ontario Prac. Rep. 314. 

5. A was nominated by two parties for the same office. One nomination 
was legal and the other was not, but his name appeared twice, as the candidate 
of the two parties, for the same office, on the official ballot. He received 70 
votes under one nomination and 301 under the other, and 8 voters marked his 
nam.e as it appeared in both the two places. It was held that while his name 
was illegally once on the ballot, yet as all the votes were intended for the same 
person, and that person having received at least one valid nomination, all votes 
cast for him should be added together, L. R. 10 C. P. 476, S. C. 32 L. T. R. N. 
S. 602; 44 L. J. C. P. 217; 33 W. R. 700. 



[1889, p. 157. Approved March 6, 1S89, and in force May 10, 1889.] 

Sec. 4701^. Vacancy on ticket, how filled. 27. In case of the 
death, removal or resignation of any candidate after the printing 
of such ballots and before such election, it shall be lawful for the 
chairman of the state, district or county political organization of 
which such candidate was a member to make a nomination to fill 
such vacancy, and to provide the election board of each precinct 
in which such candidate is to be voted for with a number of pasters 
containing only the name of such candidate at least equal to the 
number of ballots provided each precinct, but no pasters shall be 



691] DISTRILUTION OF BALLOTS. [§§4/01^, 4yOlC 

given to or received by any one except such election board and 
such chairman, and it shall be the duty of the polling clerks to put 
one of such pasters, in a careful and proper manner and in the 
proper place, on each ticket before they shall sign their initials 
thereon. [El. Sup. § 1349.] 

This section is applicable to cities and towns. It has no corresponding sec- 
tion in the act of 1881. 

Sec. 4701^. Printer of ballots. 28. If the printer of such ballots, 
or any person employed in printing the same, shall give or deliver, 
or knowingly permit to be taken, any of said ballots by any per- 
son other than a member of the board of election commissioners, 
for which such ballots are being printed, or shall print or cause or 
permit to be printed any ballot in any other form than the one 
prescribed by this act, or with any other names thereon, or with 
the names spelled or the names or devices thereon arranged in any 
other way than that authorized and directed by the said board of 
election commissioners, he shall be guilty of felony, and on con- 
viction thereof shall be imprisoned in the state penitentiary not 
less than three nor more than ten years, and be disfranchised for 
any determinate period not less than ten years. [El. Sup. §, 
1350.] 

This section is applicable to cities and towns. It has no corresponding sec- 
tion in the act of 1881. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4701^. Distributing ballots. 29. It shall, be the duty of 
each county clerk to appear in person, or by specially authorized 
deputy, bearing credentials given under the seal of the circuit 
court, at the office of the governor of the State not more than six- 
teen, nor less than ten days prior to each general election, and the 
state board of election commissioners shall thereupon deliver to 
the said clerk ten ballots for every five voters and fraction thereof 
in each precinct of his county at the last presidential election, or 
if a new precinct has been established in such county, ten ballots 
for every five voters of the estimated vote as reported by the board 
of county commissioners: Provided^ hozvever, That if it shall be 
made to appear by the affidavit of such clerk that any precinct has 
so increased in population as to have fifty per cent, more voters 
than at last presidential election, or at the time of estimate by the 
board of county commissioners, the state board of election com- 
missioners shall deliver to him two ballots for every voter so de- 
clared by him under oath to be resident in said precinct. The 
ballots shall, in the presence of the clerk, be wrapped and tied in 
packages, plainly marked, one for each precinct, and securely 
sealed with wax, and the clerk shall give his receipt for the same. 
And for the safe sealing of such ballots such board shall provide 
itself with a seal of such design as it may deem proper, but the 
same design shall not be used for any two consecutive elections. 



§ 4/01^] ELECTIONS. [692 

The state board of election commissioners shall also provide and 
inclose in each of said sealed packages three stamps bearing a 
cross (X), or such other device as they may select, together with 
the ink-pads or other necessary apparatus ready for use. In addi- 
tion to the precinct packages, the state board of election commis- 
sioners shall deliver to each clerk a package, wrapped and sealed 
in his presence, containing two thousand state ballots, and twelve 
stamps with their necessary ink-pads, which package shall rem.ain 
in the custody of the county board of election commissioners and 
shall not be opened by them except for the purpose of supplying 
a precinct whose ballots or stamps have been lost or destroyed, on 
due showing of such fact as hereinafter provided. The state board 
of election commissioners shall, from time to time, certify to the 
auditor of state the necessary expenses of the preparation and dis- 
tribution of the state ballots and stamips, and the iauditor shall audit 
and issue his warrants for the same, which shall be paid out of any 
fiinds in the state treasury not otherwise appropriated. 

1. This section is applicable to cities and towns. There is in the act of 1S81 
no section corresponding to it. 

2. Where there was a failure to deliver the official ballots, and for that 
reason no election was held in certain polling places in a district, the election 
was held void, there being a substantial failure of opportunitv for the electors 
to vote, 31 L. T. X. S. 69; S. C. 2 O'Mallej & Hardwicke (Eng. El. Cas.) 7S. 

[1SS9, p. 157. Approved March 6, 1S89, and in force May 10, 18S9.] 

Sec. 4701^. Pay of clerk — Messenger. 30. An allowance shall 
be made to the clerk by the board of county commissioners of five 
cents per mile for the distance necessarily traveled in going to and 
returning from the office of governor of the State ; but in case 
said clerk of any county shall fail to appear at the office of the 
governor of the State by the close of the tenth day prior to elec- 
tion, the state board of election commissioners shall forthwith dis- 
patch a special messenger to such county with the ballots for the 
county; which messenger, before receiving such ballots, shall take 
and subscribe to an oath, to be administered to him by the secre- 
tary of state, which oath shall be filed with said board of election 
commissioners, and shall be in the words following: 
State of Indiana, 1 

County of Marion, / ^^' 

I, , swear (or affirm, as the case may [be]) that I 

will take charge of the election ballots delivered to me by the state 

board of election commissioners for the county of ■ , and 

will safely deliver said ballots in sealed packages, and in the same 
condition as received by me, to the clerk of said county at the 
earliest time that I can reach the county seat of said county. So 
help me God. 



Subscribed and sworn to before me this day of 

l8— . 



6g2)1 INSPECTOR ABSENT. [§§ 4/01^ — 47oi^ 

And in such case said messenger shall be allowed three dollars 
per day for the time necessarily employed, and three cents per 
mile for the distance necessarily traveled by him, which allowance 
shall be certified to the treasurer of such county, and deducted 
from the first moneys thereafter accruing to such clerk payable by 
the treasurer. The amount so deducted shall be remitted by the 
county treasurer to the treasurer of state. [El. Sup. § 1352.] 

This section has no application to a citj or town ; nor has it anj correspond- 
ing section in the act of iSSi. 

Sec. 4701^. Delivering ballots to wrong" person. 31. If any 

member of the board of election commissioners shall give or de- 
liver to any other person any of said ballots, or shall permit any 
of them to be taken away, except as herein provided, he or they 
shall be guilty of a felony, and on conviction shall be punished by 
imprisonment in the state penitentiary for not less than three nor . 
more than ten years, and be disfranchised for any determinate 
period not less than ten years. [El. Sup. § 1353.] 

This section applies to cities and towns. It has no corresponding section in 
the act of 1 88 1. 

Sec. 4701/. Felony to take away ballots. 32. If any person 
shall take or remove in any manner, feloniously or with the con- 
sent or permission of the custodian for the time, from any place 
where they may lawfully be under this act, any of such ballots or 
stamps, or.be found in custody or possession of such ballots or 
stamps (except as an official or custodian under this act, or while 
within the polling place for the purpose of voting); or if any such 
custodian or official shall consent to, or permit, any of such ballots or 
stamps to be removed or carried away from the place where they 
may lawfully be by any person, except an official or custodian 
under this act whose duty it is to receive the same, such person, 
custodian or official shall be deemed guilty of a felony, and on 
conviction shall be punished by imprisonment in the penitentiary 
at hard labor for not less than three nor more than ten years, and 
be disfranchised for any determinate period not less than ten years. 
[El. Sup. § 1354.] 

This section applies to cities and towns. There is no section in the act of 
1881 that corresponds to it. 

Sec. 4701^. Inspector, ballots delivered to. 33. It shall be the 
duty of each election inspector, or in case he can not attend, some 
other member of the election board authorized in writing by the 
inspector, to appear at the office of the clerk of the circuit court 
of his county not more than three nor less than two da}'s before 
each election, and the county board of election commissioners 
shall deliver to him the sealed package of ballots and the stamps 
provided for his precinct by the state board of election commis- 



§ 4701^^^] ELECTIONS. [694 

sioners, and also ten of the local ballots printed under the direction 
of the county board of election commissioners for each five or frac- 
tion thereof of the number of votes cast at such precinct at the last 
presidential election ; or if a new precinct for each five or fraction 
of five voters, as estimated by the county commissioners : Provided, 
however, That in case it be made to appear by affidavit of such 
inspector that the number of voters in his precinct has increased 
more than fifty per cent, since the last presidential election or esti- 
mate by the board of county commissioners, there shall be deliv- 
ered to him two ballots for each voter so declared under oath by 
him to reside in the precinct. The local ballots shall be wrapped 
and tied in packages and securely sealed with wax in the presence 
of said inspector or his representative, who shall receipt for the 
same ; and for the safe sealing of such ballots the county board of 
election commissioners shall provide themselves with a seal of such 
design as they may deem proper, but the same design shall not be 
used at any two consecutive elections, and said packages shall not 
be opened until delivered to the election board of the respective 
voting precincts to which they are directed, and said boards shall 
be fully organized and ready for the reception of votes, as in this 
act provided. [El. Sup. § 1355.] 

This section applies to cities and towns. There is no section corresponding 
to it in the act of 1881. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4701/2. Poll clerks and duties. 34. At the opening of the 
polls, after the organization of, and in the presence of, the election 
board, the inspector shall open the packages of ballots in such a 
manner as to preserve the seals intact. He shall then deliver to 
the poll clerk of the opposite political party from his own, twenty- 
five each of the state and local ballots, and to the other poll clerk 
the stamps for marking the ballots. The poll clerks shall at once 
proceed to write their initials in ink on the upper right hand 
corner of the back of each of said ballots, in their ordinary hand- 
writing, and without any distinguishing mark of any kind. As 
each successive elector calls for a ballot the poll clerks shall deliver 
to him the first signed of the twenty-five ballots of each kind ; and 
the inspector shall immediately deliver to the poll clerks another 
ballot of each kind, which the poll clerk shall at once countersign 
as before, and add to the ballots already countersigned, so that it 
shall be delivered for voting after all those theretofore counter- 
signed. 

1. This section is applicable to cities and towns. It has no corresponding 
section in the act of 1881. 

2. A ballot without the official initials on the back is void, 2 O'Mallej & 
Hardwicke (Eng. El. Cas.) 215, S. C. i Ct. of Sess. 925, see § 4709<7; but in Can- 
ada such absence does not vitiate the ballot, 12 Can. L. Jr. 113; 20 Low. Can. 
Jur. 22 ; 9 Qub. L. Rep. 20 , 7 Can. Supr. Ct. 248 , 13 Qub. L. Rep. 64 ; 16 Q^ 
B. Div. 739, S. C.54 L. T. N. S. 289; and the same decision has been rendered 



6gS] INSTRUCTIONS LOSS OF BALLOTS [§§ 47OI/ — 4/01^ 

in Australia, 5 W. W. & A'B (L) 226, S. C. Melbourne Ar^^ns, Sept. 16, 1867; 
Browing (Australia) 173; S. C. Mor7ii7ig Herald^ of Sidney, March 11, 1876. 
Signing all the ballots before the polls open, to save time, and keeping them 
until delivered to each voter as required, does not render the election void, 2 
Ct. of Sess. 299. 

[18S9, p. 157. Approved March 6, 1889, and in force Maj 10, 1889.] 
Sec. 4701/. Cards — Instructions. 35. The county board of elec- 
tion commissioners of each county shall cause to be printed in 
large type on cards, in English and such other language as they 
deem necessary, instructions for the guidance of electors in pre- 
paring their ballots. They shall furnish twelve of such cards in 
each of the languages determined upon by them to each of the 
election inspectors at the same time they deliver to him the ballots 
for his precinct. Each inspector shall cause to be posted one of 
each of said cards in each place or compartment provided for the 
preparation of ballots, and one of each kind of such cards at or 
near to the outer end of the chute leading to the polling place, and 
not nearer than fifty feet of the polling place, and not less than 
three of each of such cards, and three samples of each of the state 
and local ballots in and about the polling place at the opening of 
the polls on the day of election, which sample baUots shall be 
printed on different colored paper than the genuine ballots. Said 
cards shall contain full instructions to the voters as to what must 
be done: First, to obtain ballots for voting; second, to prepare 
the ballots for voting; third, to obtain a new ballot in place of one 
accidentally defaced, mutilated or spoiled ; also, copies of sections 
forty-three, fifty, fifty-five, fifty-six, fifty-nine and sixty of this 
act. [El. Sup. § 1357.] 

This section is applicable to cities and towns. It has no corresponding sec- 
tion in the act of 1881. 

Sec. 4701;' Special messenger with ballots. 36. In case any in- 
spector or his representative shall fail to appear at the office of the 
county clerk by the close of the second day prior to any election, 
the county board of election commissioners shall forthwith dis- 
patch a special messenger to his precinct with the ballots and 
stamps for such precinct. Such messenger shall be allowed two 
dollars for his time and five cents per mile for the distance neces- 
sarily traveled by him, and shall promptly report to such clerk and 
file with the receipt of the person to whom he delivered such bal- 
lots and stamp, and his affidavit stating when and to whom he 
delivered such ballots and stamps, and such inspector shall receive 
no compensation for his services at such election. [El. Sup. 

§ 1358.] 

This section applies to cities and towns. It has no corresponding section in 
the act of 1881. 

Sec. 4701/^. Inspector's neglect of duty. 37. An}- inspector who 
shall willfully or negligently fail to appear at the clerk's office^ in 



§§ 4/01 ^> 4/01^^^] ELECTIONS. [696 

person or by representative, as herein provided, shall be guilty of 
misdemeanor, and on conviction shall be fined not less than ten 
dollars, nor more than one hundred dollars, and shall thereafter be 
incompetent to serve as inspector. [El. Sup. § 1359.] 

This section is applicable to cities and towns. It has no corresponding sec- 
tion in the act of 1881. 

Sec. 4701/. Loss of ballots. 38. If by any accident or casualty 
the ballots delivered to any clerk, inspector, or other messenger 
shall be lost or destroyed, it shall be the duty of such person in 
custody to report the loss at once to the board of election commis- 
sioners, from which the same were obtained, and make affidavit 
of the circumstances of the loss, whereupon such board shall at 
once re-supply such person. In case such person in custody fails 
or refuses to report and make proof of the loss, any qualified elector 
may do so, and thereupon such board shall at once send a new 
supply by special messenger, as provided in other cases. In case, 
for any reason, there should be found no ballots or other necessary 
means or contrivances for voting at the opening of the polls, it 
shall be the duty of the election board to secure the same as 
speedily as possible, and, if necessary, such board may have bal- 
lots printed: Provided, however, That such ballots shall conform as 
nearly as possible to the genuine ballots, and the printing and the 
care of the same shall be under the same provisions and penalties 
as the printing and care of the other ballots prescribed in this act. 
[El. Sup. § 1360.] 

1. This section is applicable to cities and towns. It has no corresponding 
section in the act of 1S81. 

2. The objection that the supply of ballots failed, or that sufficient accommo- 
dations had not been supplied, can not be raised as between two candidates upon 
a petition for a recount of the votes. The defect in supply must be sufficient to 
avoid the whole election, and therefore must be the subject of a special claim, 
and all the candidates must be made parties, 7 Can. Supr. Ct. 248. So where 
the supply gave out and the polls for that reason were closed for half an hour, 
during which a number of voters were prevented from voting, it was held that as 
the number that were preventedfrom voting was not sufficient to offset the result, 
the election was valid, i El. Cas., Ontario, 291. 

Sec. 4701;;^. Preservation and burning of ballots. 39. The vari- 
ous boards of election commissioners shall preserve the ballots 
that are left over in their hands after supplying the precincts as 
hereinbefore provided, until six o'clock p. m. of the day of elec- 
tion, and shall then count and destroy, by totally consuming by 
fire, all of such ballots but one, which shall be securely pasted in 
the election record immediately preceding the place where the 
vote is to be recorded. They shall also cause to be entered below 
such ballot the number of ballots printed by them, the number 
delivered to each messenger and the number destroyed by them. 
[El. Sup. § 1 36 1.] 

This section is applicable to cities and towns. It has no corresponding sec- 
tion in the act of 1881. 



697] ELECTION BOOTHS CHALLENGES, [§§ 4^01;^, 4/02 

Sec. 4701;^. Election rooms and booths. 40. It shall be the duty 
of the county commissioners in each county, before each election, 
to provide for and secure in each precinct of the county a suitable 
room in which to hold the election, and to have placed therein a 
railing separating the part of the room to be occupied by the elec- 
tion board from the remainder of the room and also three booths 
or compartments in which electors shall mark their ballots, screened 
from observation, each containing a counter or shelf Booths shall 
be so constructed and arranged that all the members of the election 
board can see whether more than one voter enters any one of such 
booths at one time. The portion of the room set apart for the 
election board shall include a window at which the voter shall 
appear for challenge, and such voter shall immediately announce 
his full and true name to the challengers. The board of county 
commissioners shall also provide for each precinct a chute or pas- 
sage with a railing, rope or wire on each side, commencing fifty 
feet away from, and leading to such polling place, passing such 
window for challenge, and thence to the entrance of the room in 
which the election is held. The expenses of such preparation 
shall be defrayed as other expenses of the county by the board of 
county commissioners. No election shall be held in a room in 
which spirituous, vinous or malt Hquors are kept or sold. [El. Sup. 

§ 1362.] 

1. This section is applicable to cities and towns. It has no corresponding 
section in the act of 1881, 

2. At a polling place two rooms were used, the election officers being in one, 
and the voting compartments in the other. There was an opportunity for 
other persons to stand at the landing between the two; but no actual violation 
of secrecy, in a contest, was proved. It was held that as no evidence of viola- 
tion of secrecy was offered, and no injury was shown to have been suffered, the 
elected candidate should not be unseated on account of the act of the election 
officers, 9 Irish L, T. 161, S. C. 2 O'Malley Si, Hardwicke (Eng. El. Cas.) 201. 

Sec. 4702. Challenges — Affidavits. 41. One challenger and one 
poll-book holder, appointed and designated by each party organi- 
zation, shall be entitled to stand at the sides of the chute near the 
challenge window. No other person shall remain within fifty feet 
of the same, except for the purpose of offering his vote ; and voters 
shall approach and enter the chute in the order in which they 
appear for the purpose of voting. If any person offering to vote 
shall be challenged by one of such challengers or by any member 
of the election board, he shall stand aside and shall not be entitled 
to vote unless he makes affidavit in writing that he is a qualified 
and legal voter of the precinct, and in such affidavit sets forth his 
name, residence, occupation, place or places of residence during 
the six months prior to the election, with the date of any removal 
within that time, and the names of two persons who have personal 
knowledge of his residence in the precinct thirty days and the 
township sixty days, and shall, in case he be a person required by 
this act to be registered, also produce the necessary certificate of 



§ 4702] ELECTIONS. [698 

registration provided for in this act. He shall then be allowed to 
vote, unless the challanger or some qualified voter of the precinct 
make affidavit in writing that he knows or is informed and verily 
believes that the person offering to vote is not a legal voter in the 
precinct ; and if the affidavit be on information and belief, he shall 
set forth the names of the person or persons from whom such 
information was obtained, and the person offering to vote shall not 
thereafter be allowed to vote, except one qualified voter of the 
precinct, who has been a freeholder and resident householder in 
the precinct for at least one year or a resident householder for two 
years next preceding such election shall make affidavit or affirma- 
tion in writing that of his personal knowledge such person offering 
to vote is a legal voter at the precinct : Provided, That if such per- 
son so offering to vote be challenged solely or for the additional 
reason that he is not a citizen of the United States, then such per- 
son so challenged for such reason shall take and subscribe the fol- 
lowing oath : 

I do solemnly swear (or affirm, as the case may be) that I have 
resided in the United States one year, and have declared my in- 
tention of becoming a citizen thereof in conformity with the laws 
thereof 

The other affidavits herein referred to shall be in the following 
form: 

I do solemnly swear (or affirm, as the case may be) that I am a 
citizen of the United States ; that I am now over the age of twenty- 
one, to the best of my information and belief; and that I have 
been a bona fide resident of this State for six months immediately 
preceding this election ; that I have resided in the township sixty 
days, and in the precinct thirty days, and that I am now a bona 
fide resident of this precinct ; that I am generally known by the 
name in which I now desire to vote, which is . . . . ; that I 
have not voted and will not vote in any other precinct in this elec- 
tion ; that my occupation is . . . . ; that my present residence 
is ... . (if in the city or town give the street or number), and 
that during the last six months prior to this election I have resided 
at . . . . , I have removed from .... to .... on the fol- 
lowing date . . . . ; and that .... and .... have personal 
knowledge of my residence in the precinct thirty days and in the 
township sixty days. 

I swear that I am informed and believe that . . . . , now offer- 
ing to vote, is not a legal voter in this precinct, and that I obtained 
such information from .... and .... 

I do solemnly swear (or affirm, as the case may be) that I am a 
qualified voter in this precinct ; that I have been a freeholder and 
resident householder in this precinct for one year, or a resident 
householder for two years next preceding this election ; that 
. . . . , who now desires to vote, has resided in this State for 
six months immediately preceding this election ; that he has 



699] ILLEGAL VOTING. [§§4/03 — 4/03^ 

resided in this township sixty days, and in this precinct thirty 
days, at . . . . ; that he is now a bona fide resident of this pre- 
cinct and a legal voter therein. These facts I know of my own 
personal knowledge. [El. Sup. § 1363.] 

1. This section applies to cities and towns. It is radically different from 
the corresponding section in the act of 18S1. 

2. Challenge on ground that elector's vote is purchased, see § 476S/. 

3. A judge or inspector of an election Avho, merely in consequence of an 
error of jzidgment^ refuses to receive a legal vote is not liable to an action for 
such refusal unless he acted wrongfully and maliciously, 5 B. 138; 26 Ind. 264; 
27 Ind. 492. But after the elector has taken the proper oath, while the judge and 
inspectors, or any two of them, may still refuse to receive his vote, j^et they do 
so at the peril of being able to show that he was not a legal voter, upon a prose- 
cution for refusing the vote. If the board is able to show that a vote rejected 
under such circumstances was an illegal vote, they are liable neither to a crim- 
inal nor a civil prosecution, 17 Ind. 536. 

4. If the person offering to vote takes the prescribed oath or oaths, the elec- 
tion hoard is i\A\y justified in receiving the vote; unless it can be shown that 
they acted corruptly, and were cognizant of the fact that he was not a legal 
voter, 17 Ind. 536. 

5. It is the duty of the inspector or judge to state to one who offers to vote 
and is challenged the qualifications requisite to entitle him to vote, 17 Ind. 536. 

6. The election board can not hear testimony relative to the right of any 
person to vote. The oath or oaths prescribed by the statute is the only evi- 
dence that they can receive, 17 Ind. 536. 

7. Section 4768(7 prohibits the payment of challengers, poll-book holders, 
drivers, or any other party workers on election day. (Construction by the 
Marion superior court judges.) 

Sec. 4703. Arrest of illegal voter. 42. If at any tinne during 
the election any qualified elector shall make affidavit before the 
inspector that any person who has voted is an illegal voter in such 
precinct, the person accused shall at once be arrested by the elec- 
tion sheriffs and by them delivered to the civil authorities. Im- 
mediately after the close of the election the inspector shall deliver 
such affidavit to some justice of the peace in the township, who 
shall proceed thereon as if the affidavit had been made before 
him. [El. Sup. § 1364.] 

This section applies to electors in cities and towns. There is no directly 
corresponding section in the act of 18S1. 

Sec. 4703^. Perjury. 43. Whoever shall knowingly or will- 
fully make a false affidavit, under any of the provisions of this act, 
shall be deemed guilty of perjury. [El. Sup. § 1365.] 

This section applies to all voters in city and town elections. It has no di- 
rectly corresponding section in the act of 1881. 

[1891, p. 124. Approved March 6, 1S91, and in force June 3, 1S91.] 

Sec. 4703^. Employment of voter. 44. No person entitled to 
vote at any general, national, state or county election, shall be 
employed upon the day on which such election shall be held in 
any manufacturing, mining, mechanical or mercantile establish- 



§ 4704] ELECTIONS. [700 

ment or any railroad corporation in this State during the period 
of four hours after the opening of any election in the county in 
which such person is entitled to vote, except as to works of neces- 
sity, in which works of necessity every employee shall be given 
some period of four hours between the opening and closing of the 
polls on said day ; and any circuit court may enforce the provis- 
ions of this section in term time or in vacation by mandate, or 
otherwise, upon the application of any voter : Provided, however, 
That in any such establishment or corporation the employer or 
employees may agree on any four hours between the opening and 
closing of the polls that Avill be most convenient. Every officer 
of any corporation, owner, superintendent, overseer or foreman, 
who employs or permits to be employed any person in violation 
of this section, shall be guilty of a misdemeanor, and fined not 
less than fifty nor more than five hundred dollars. 

Sec. 4704. Method of voting. 45. When a voter shall have been 
passed by the challengers, or shall have sworn in, he shall be ad- 
mitted to Jthe election room : Provided, however, That not more 
than three voters shall be allowed in the room at one time. On 
entering the room the voter shall announce his name to the poll 
clerks, who shall register it. The clerk holding the ballots shall 
deliver to him one state and one local ballot, and the other clerk 
shall thereupon deliver to him a stamp, and both poll clerks, on 
request, shall give explanation of the manner of voting; if deemed 
necessary, by unanimous consent of the board, an interpreter may 
be called. The voter shall then, and without leaving the room, 
go alone into any of the booths which may be unoccupied and in- 
dicate the candidates for whom he desires to vote by stamping the 
square immediately preceding their names, and indicate his prefer- 
ence on any question of constitutional amendments or other special 
matter by stamping in front of the words '* Yes" or '*No" under 
such questions : Provided, Jioivever, That if he shall desire to vote 
for all candidates of one party or group of petitioners, he may 
place the stamp on the large square enclosing the device and pre- 
ceding the title under which the candidates of such party or group 
of petitioners are printed, and the vote shall then be counted for 
all the candidates under that title. If the voter stamps the large 
square enclosing the device, he shall not stamp elsewhere on the 
ballot, unless there be no candidate for some office in the list 
printed under such stamped device, in which case he may indicate 
his choice for such office by stamping the square to the left of the 
name of any candidate for such office on any other list ; a stamp 
on a ballot in violation of this provision shall be treated as a dis- 
tinguishing mark. If a stamp touches a square it shall be counted 
on the square, but a stamp that touches no square shall be treated 
as a distinguishing mark. Before leaving the booth or compart- 
ment, the voter shall fold his ballots separately, so that no part of 



70l] METHOD OF VOTING. [§ 4704 

the faces thereof shall be exposed, and so that the initials of the 
poll clerks shall be exposed, and on leaving the booth or compart- 
ment shall return the stamp to the poll clerk and deliver the ballots 
to the inspector, or to the judge who may temporarily be author- 
ized to act for him, who shall forthwith, in the presence of the 
voters and of the election board, deposit the same in the respec- 
tive ballot boxes, the state ballot in the red ballot box, and the 
local ballot in the white ballot box ; and the ballot clerks shall 
write the word " voted " after the name of the voter on the poll 
lists : Provided, Jiowevcr, That if any elector shall show his ballot, 
or any part thereof, to any other person, after the same shall have 
been marked, so as to disclose any of the candidates voted for, 
such ballot shall not be deposited in the ballot box. A minute 
of such occurrence shall be made on the poll list, and such person 
shall not be allowed to vote thereafter. If a voter shall offer to 
vote a ballot so folded as not to disclose the initials qf the poll 
clerks and also not disclosing the face of the ballot, the election 
board shall direct him to return to the booth and fold his ballot 
properly. After voting, the voter shall leave the room, but no 
voter to whom a ballot and stamp or either have been delivered 
shall be permitted to leave the room without voting the ballots or 
returning them to the poll clerk, or without returning the stamp 
to the poll clerk from whom he received it. Any voter who shall 
attempt to leave the room with a ballot or stamp in his possession 
shall be at once arrested on demand of any member of the election 
board. 

1. This section applies to elections in cities and towns. It has no corre- 
sponding section in the act of 1881. 

2. The objects of the election lazv of 1889 are two — secrecy and purity of 
elections, 12 Q^ B. Div. 452, S. C. 45 L.J. M. C. 157; 34 L.T. 660; 13 Cox C.C. 
193. Secrecy is for the benefit of the voter, and he may, when he deposits his 
ballot, announce aloud, without losing his vote, the candidate for whom he 
votes, 7 Leg. News (Qtieb.) 414, S. C. i Montreal L. R. 121. 

3. x\ voter tendered his ballot, but on being improperly required to take 
a certain oath if he desired to vote, he refused to do so, and his ballot was 
rejected. #In a contest over the election it was held error to allow him to tes- 
tify that he intended to vote for a certain candidate; for the policy of the law 
forbade that the intention of the voter should be disclosed. The vote was not 
counted, Hodg. El. Cas. (Can.) 500. But where an election officer improperly 
refused to give electors ballots, on the grovxnd that they were not registered, it 
was considered that they could testify in a contest for whom thej^ desired or 
intended to vote, and that their votes should be counted for that candidate, such 
a proceeding not violating the policy of the law, and any other decision would 
put it into the power of the election officer to control the election, Hodg. El. 
Cas. (Can.) 671, S. C. 11 Can. L. J. 162. See 37 U. C. Q^ B. 134. 

4. This section imposes the duty upon the clerk having the ballots marked 
with initials in his possession to see that the ballot he delivers to the voter is 
properly marked, and tp be present during the voting, so that voters, before 
depositing their ballots, can show to the inspector the official initials on the 
back of the ballot in accordance with the statute. For a breach of these duties, 
which are merely ministerial, an action lies bv a party aggrieved, for example, 
who has therebj' lost the election through votes given to him being void for 
want of the proper initials, without malice or want of reasonable care on the 
part of the clerk. The inspector or judge receiving the ballot is not liable for 



§4705] ELECTIONS. [702 

the clerk's failure to perform his duties, inasmuch as he does not appoint him, 
and the relation of master and servant does not exist, L. R. 8 C. P. 489, 43 L. J. 
C. P. 217; 21 W. R. 786; 29 L. T. 210. This case is critically reviewed in 17 
Sol. Journal, 644. For the liability of election officers, see 21 Ir. L. T. 310, and 
II Cent. L. Jr. 141. 

5. A man may take a sample ticket into a booth and compare it with a gen- 
uine ticket and stamp his genuine ticket to conform with the sample. These 
sample tickets do not violate the law, because they are not counterfeits or imi- 
tations. They are merely sample ballots, and the law provides they may be 
printed and used as they are used now. It is no violation of law for a man to 
have these sample tickets in his possession at any time or place, while it is a 
violation to have a genuine ticket in possession except during the few minutes 
between receiving, preparing, and voting it. 

INSTRUCTIONS TO VOTERS. 

6. First. You must get your ballots of the polling clerks in the election 
room. 

Second. If you want to vote a straight ticket, stamp the square at the top 
of the name of the party for whose candidates you wish to vote. If you do not 
wish to vote a straight ticket, then do not stamp the square at the top of the 
name of your party, but stamp the square to the left of the name of each candi- 
date for whom you desire to vote, on Avhatever list of candidates it may be. 

Third. Do not mutilate your ballot, or mark it either by scratching a name 
off or writing one on, or in any other way, except by the stamping on the 
square or squares, as before mentioned. Otherwise the ballot will not be 
counted. 

Fourth. After stamping your ballots, and before leaving the booth, fold 
them separately, so that the face of them can not be seen, and so that the initial 
letters "of the names of the polling clerks on the back thereof can be seen. Then 
hand your ballots to the inspector, the stamp to the polling clerk, and leave 
the room. 

Fifth. If you are phj'sically unable to stamp your ballots, or can not read 
English, so inform the polling clerks, and tell them how you wish to vote and 
they will stamp your ballots for you. But the voter and clerks, should not per- 
mit any other person to hear or see how the ballots are stamped. 

Sixth. If you should accidentally or by mistake deface, mutilate or spoil 
your ballot, return it to the poll clerks and get a new ballot. 

Seventh. You may use a " paster ballot," either upon the state or local bal- 
lot, or upon both of them. 

Sec. 4705. "Paster ballot." 46. In addition to the state and 
local ballot which the clerk is to deliver to the voter in the elec- 
tion room under the provisions of section forty-five of the act of 
which this act is an amendment, the voter may take with him into 
the booth a printed ballot or ballots of his own selection or prep- 
aration to be known as a paster ballot or ballots, and designed to 
be pasted upon either such state or local ballot, or upon each of 
them. If such paster ballot is designed to be pasted upon the 
'' state ballot, it shall be in the nature of a complete ticket and shall 
contain a complete list of all offices to be filled at the election 
where used by the vote of the electors of the whole State, and 
shall contain the name of one person for each and every one of 
such offices. If such paster ballot is designed to be pasted upon 
the local ballot it shall be in the nature of a complete ticket, and 
contain a complete list of all offices to be filled at such election for 



703] METHOD OF VOTING. '[§ 4705 

the filling of which the electors of the county where used are en- 
titled to vote other than offices which are filled by the vote of the 
electors of the whole State, and it shall also contain the name of 
one 'person for each and every one of such offices in such list. 
The said paster ballots shall be in the form indicated as follows : 

For Governor, 

COURTLAND C. MaTSON. 

For Lieutenant-Governor, 
William R. Myers. 

They shall be printed in plain black ink upon white paper. The 
paper shall not be more than two inches in width, and of sufficient 
length to contain the complete list of offices and names as above 
specified. The names of the persons upon said list, as well as of 
the offices, shall be printed one below another in the manner above 
indicated. The distance from the center of the name of any per- 
son in such list to the center of the name of the person immedi- 
ately below in such list, shall be three-fourths of an inch, in order 
that the names in such list when pasted upon the State or local 
ballot will conform to the squares thereon. Such pasters shall 
contain no heading, no printing save as above indicated, no writ- 
ing, no blank nor any distinguishing marks of any kind whatever. 
Such paster ballot may be gummed upon the back and pasted 
upon the state or local ballot accordingly as it is designed in 
such manner as that the squares upon the state or local ballot to 
the left of any list of names printed thereon, will come immedi- 
ately to the left of, and opposite respectively the names printed 
upon such paster ballot and in such manner as that the state or 
local ballot will not show when folded that it contains a paster. 
The voter may then indicate his choice for any office by stamping 
the square upon the state or local ballot immediately to the left 
of the name printed upon such paster ballot when pasted. He 
shall in no other manner attempt to indicate his choice. Any 
stamps upon the state or local ballot elsewhere shall be deemed a 
distinguishing mark and render the ballot void. If the ballot con- 
tains no distinguishing mark, the election board shall deem and 
count as the voter's choice the names of the persons upon such 
paster ballot having the square immediately to the left stamped, 
and they shall count none other. It shall be unlawful for any per- 
son to use the paster ballot provided for in this section unless he 
desires to vote for one or more persons for one or more offices re- 
spectively to be filled at such election, the names of which person 
or persons are not printed upon the state or local ballot, as the 
case may be, as a candidate or candidates for such office or offices 
respectively. And any paster which contains the names of per- 
sons only for the respective offices whose names are printed upon 



§§ 4705^. 4/05 <^] ELECTIONS. [704 

the state or local ballots as candidates for the same offices respec- 
tively shall be void and the ticket containing the name shall not be 
counted. The voter who attempts to use a paster ballot under the 
provisions of this section must prepare or select a paster ballot 
containing a complete list of names for every office for whom he 
desires to vote and must vote for names contained upon the paster 
and none other. If a state or local ballot contains a paster placed 
thereon by the voter, as provided for in this section, any stamp 
upon such state or local ballot other than are on the squares at the 
left of the paster ballot, shall be deemed a distinguishing mark 
and render the whole ticket void. Every violation of the provis- 
ions of this section by a voter shall be deemed to be an attempt 
to distinguish his ballot and shall render the same entirely void. 

Sec. ^705a. Mutilated ballots. 47. Not more than one person 
shall be permitted to occupy any booth at one time, and no per- 
son shall remain in, or occupy a booth longer than may be neces- 
sary to prepare his ballot and in no event longer than five minutes. 
Not more than three persons other than the election officers shall 
be permitted to enter, or be in the election room at any one time, 
and no voter or person offering to vote shall hold any conversation 
or communication with any other person than a member of the 
election board while in the election room. Any person who shall 
by accident or mistake spoil, deface or mutilate his ballot may, on 
returning the same to the poll clerks and satisfying them that such 
spoiling, defacing or mutilation was not intentional, receive another 
in place thereof,, and such clerks shall make a minute of the fact on 
the poll list at the time, and the mutilated ballot shall then be de- 
stroyed by the elector in the presence of the board. 



[1889, p. 157. Approved March 6, 1889, and in force Maj 10, 1889.] 

Sec. 4705<^. When poll clerks can prepare ballots. 48. Any 

elector who declares that by reason of physical disability or in- 
ability to read the English language, he is unable to mark his bal- 
lot, may declare his choice of candidates to the poll clerks, who, 
in the presence of the elector and in the presence of each other, 
shall prepare the ballots for voting in the manner hereinbefore 
provided, and on request shall read over to such elector the names 
of the candidates as marked. Any one making a false declaration 
under the provisions of this section shall, upon conviction, be fined 
in any sum not exceeding five dollars and be disfranchised for a 
period of five years, and any poll clerk or poll clerks who shall 
deceive any elector in selecting or marking any ballot, or mark the 
same in any other way than as requested by said elector, shall be 
guilty of felony, and on conviction, shall be imprisoned in the 
penitentiary for not less than two nor more than five years, and be 



705] IGNORANT VOTER. [§ 4/05^ 

disfranchised for any determinate period not less than five years. 
[EL Sup. § 1370.] 

This section applies to cities and towns. It has no corresponding section in 
the act of 1881. 

[1S91, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4705^. Deposit of ballots by inspector. 49. No inspector 
of election, or judge acting for an inspector, shall deposit any bal- 
lot upon which the initials of the poll clerks, as hereinbefore pro- 
vided for, does not appear, or any ballot on v/hich appears exter- 
nally any distinguishing mark, defacement or mutilation. If any 
inspector, judge, poll clerk or other person entrusted with the 
custody or control of any ballot or ballots, either before or after 
they have been voted, shall in any way mark, mutilate or deface 
any ballot or place any distinguishing mark thereon, either for the 
purpose of identifying the same (except by numbering protested 
ballots for future reference) or for the purpose of vitiating the same, 
he shall be guilty of a felony, and on conviction shall be im- 
prisoned in the State's prison not more than ten nor less than five 
years, and fined in any sum not exceeding two thousand dollars. 

1. This section applies to cities and towns. It has no corresponding section, 
in the act of 1881. 

2. An election officer in polling the votes of some fifty illiterate voters,, 
instead of taking from each of them a written declaration, as required bj stat- 
ute, " that he was unable to read," asked each if he was able to read or write, 
and having received an answer in the negative, requested him to put his mark 
to the declaration of illiteracy, explaining what he conceived to be its eftect 
thus: "you hereby sign that you are unable to read or write sufficiently to mark 
your ballot paper." He then openly marked the ballot paper as instructed by 
the voter in the presence of both candidates, their agents and the poll clerk, all 
of whom had taken the usual declaration of secrecy. It was held that there was 
substantially no violation of* the principal of secret voting, and that the votes 
were not improperly taken. By one judge it was said that there was nothing 
in the act (and see our own act on this point) which made it necessary that the 
election officer and the voter to withdraw to another room, or which forbade 
the poll clerk or other officers lawfully present in the polling room from remain- 
ing there while the voter announced for whom he desired to vote. Another 
judge considered that the conduct of the election officer was perverse, the mani- 
fest policy of the law being that the voting should be in all cases as secret as 
under the circumstances it could be. Another judge thought that there was no 
violation of the law, as all those present, except a constable who was in another 
part of the room, had taken the oath of secrecy, i Election Cas. (Ontario) 88. 

3. An illiterate voter requested instruction from some one present. An 
agent belonging to the voter's party, who was rightfully present, after the elec- 
tion officer had put a pencil (with which the marking was done) in the voter's 
hand, and the latter, who could not read, but had not declared his inability, had 
said he wished to vote for B., took the pencil and marked the ballots accord- 
ingly. It was held to be an improper proceeding ; the election, however, was 
set aside on other grounds, Hodg. El. Cas. (Can.) 283. 

4. A law required a voter to strike out all names on the ballot except that 
one for whom he intended to vote. He then inadvertently struck out the first 
name of H. Upon asking a bj^stander, not an election officer, how to rectify the 
mistake, the latter, not otherwise interfering, told him that the only way would 
be to write "I vote for H. only," and he wrote these words on the ballot for 
him. It was held that the erasure of the first name of II. did not vitiate the 
vote for him; that as the act placed the services of the election officers at the 

4"? 



§§ 4705^—4706] ELECTIONS. [706 

disposal of illiterates, but did not expressly forbid other persons to render assis- 
tance, the bystander's act was not unlawful, notwithstanding such a practice 
might materially interfere with the secrecy of the ballot, 5 Australian Jur. R. 

135- 

5. During the progress of yoting a person, lawfully present, thought the 
ballot papers were not being properly marked, and the election officer, who 
had been putting his initials on the counterfoil and not on the ballot paper 
proper, "so placed that when the ballot is folded they can be seen without 
opening it,"' initialed about twelye of the ballot papers, but finding he was 
wrong, at the close of the poll, in good faith and with an anxious desire to do 
his duty, and in such a way as not to allow any person to see the front of the 
ballot paper, and with the'assent of the legal agents of both the contestor and 
contestee, took these ballots out of the box and obliterated the marks he had 
put upon them. It was held that these irregularities not haying infringed upon 
the secrecy of the ballot, and the ballots being unquestionably those giyen by 
the election officer to the voters, these ballots should be held good, and that 
such irregularities came within the saying provisions of a statute similar to 
§ 4757, 8 Can. Sup. Ct. 676; Hodg. EL Cas. 519, 764. 

[1889, p. 157. Approved March 6, 1889, and in force May 10, 1889,] 

Sec. 4705(3?. Removal of stamps. 50. Any person who shall re- 
move or attempt to remove a ballot or stamp from the election- 
room, or having in his possession outside the election-room any 
ballot or stamp, either genuine or counterfeit, during the election, 
shall be guilty of felony, and on conviction, shall be imprisoned in 
the penitentiary not less than two nor more than five years, and be 
disfranchised for any determinate period not less than ten years. 
[El. Sup. § 1372.] 

This section applies to city and town elections. It has no corresponding sec- 
tion in the act of 1881. 



Sec. 4f05^. Counting ballots. 51. Immediately on closing the 
polls, the board shall count all the ballots remaining unvoted, record 
the number of the same on the tally-sheets, and destroy all of such 
ballots by totally consuming by fire. [El. Sup. § 1373.] 

This section applies to city and town elections. It has no corresponding sec- 
tion in the act of 1881. 



[i^i, p. 4&2. Approved April 2i,ii86i, and in force September 19, 1881.] 

Sec. 4706. D.ef^tive ballots. 28. If more persons are designated 
on any ticket to any office than are to be elected to such office, 
such part of the ticket shall not be counted to any of them ; but 
no ticket shall be lost for want of form, if the board of judges can 
determine, to its satisfaction, the person voted for and the office 
intended: Provided, That no ballot shall be rejected by reason 
of any misarrangement of initial letters, or the mis-spelling of any 
christian or surname of any candidate, but, if the board is able to 
discover, to the satisfaction of a majority thereof, the person in- 
tended to be voted for, such ballot shall be counted. 

This section applies to cities and towns. See §§4710 and 4710/. 



70/] MEALS CANVASS OF VOTES. [§§4/0/ 4709^3: 

Sec. 4707. Duty of board. 29. No inspector, clerk, or judge 
of any election shall vote after commencing to count the votes, 
nor publish any statement of the result of the counting until such 
election is closed. 

This section applies to cities and towns. 

Sec. 4708. Adjournments forbidden. 30. After the opening of 
the polls at any election in this State, no adjournment shall be had 
nor any recess taken until all the votes cast at such election shall 
have been counted, and the result publicly announced. 

This section applies to cities and towns. 

Sec. 4709. Meals for election officers. 31. It shali be the duty 
of the township trustees, in their respective townships, to cause 
the members of the election board in each township or precinct to 
be furnished with good, plain, and substantial meals, at the regular 
hours for meals, during the election day and until the count is fin- 
ished, but no spirituous, vinous, or fermented liquors shall be fur- 
nished. Such trustees shall be allowed, and paid, by the county 
board the actual cost of such meals, in their next regular account. 

1. This section applies to cities and towns; and the common council and 
board of trustees must provide meals for election officers in cities and towns. 

2. The county must reimburse a township trustee for the expense incurred 
under this section, even if the election was only a township election, 107 Ind. 
584. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4709^. Canvass of votes. 52. The board shall then proceed 
to canvass the votes, beginning first with the state ballots and com- 
pleting them before proceeding with the local ballots, by laying 
each ballot upon the table in the order in which it is taken from 
the ballot box, and the inspector and the judge of the election, 
differing in politics from the inspector, shall view the ballots as the 
names of the persons voted for are read therefrom. In the canvass 
of the votes any ballot which is not endorsed with the initials of 
the poll clerks, as provided in this act, and any ballot which shall 
bear any distinguishing mark or mutilation shall be void and shall 
not be counted, and any ballot or part of a ballot from which it is 
impossible to determine the elector's choice of candidates, shall 
not be counted as to the candidate or candidates afifected thereby : 
P}'ovidedy /towever, That on protest of any member of the board 
9uch ballot, and all disputed ballots shall be preserved by the in- 
spector, and at the close of the count placed with the seals of the 
ballot packages in paper bags, securely sealed, and so delivered to 
the clerk of the county with notification to him of the number of 
ballots so placed in such bags, and of the condition of the seals of 
the ballot packages. The poll clerk shall also record on the tally 
sheets, memoranda of such ballots and the condition of the seal of 



4709^] 



ELECTIONS, 



[708 



the ballot packages, and in any contest of election such ballots and 
seals may be submitted in evidence. On completing the count 
and recording the same on the tally sheets, all the remaining bal- 
lots, except those marked, mutilated or otherwise defective, as in 
this section hereinbefore described, shall be destroyed by the elec- 
tion board by totally consuming by lire before adjournment, and 
thereupon the election board shall immediately make a memoran- 
dum of the total vote cast for each candidate and deliver a copy 
thereof to each member of such board. No person other than the 
members of the election board, poll clerks and election sheriffs, 
and United States supervisors, if any be appointed, shall be per- 
mitted in the election room during the election, except for the 
purpose of voting or during the canvass of the votes. 

1. See § 4706. This section applies to cities and towns; and it has no 
corresponding section in the act of 1881. See § 4710. 

2. In delivering a ballot to a voter, two were inadvertently torn from the 
block together, the official mark placed upon the back of the upper one only, 
and the voter's mark made on the face of the lower one. It was held that the 
absence of the official mark on the ballot marked by the voter did not vitiate it, 
9 Queb. L. Rep. 20. See 13 Ct. of Sess. 877 (question raised but not decided). 
See § 4701//, note 2, L. R. 16 Q^ B. Div. 739, S. C. 54 L. T.^ N. S. 289. 

3. A voter's registry number (where there Avas a registry law in force) was 
erroneously placed on the face of a ballot by the clerk and was by him erased 
after the close of the polls. It was held that the ballot was valid, 8 Can. Supr. 
Ct. 676; but in England a ballot similarly marked was held void, because it en- 
abled the voter to be identified, L. R. 10 C.P.733; S.C.30 L.T. R, N. S.867; 44 
L.J. C. P. 293; 32 L.T. 867. 

4. An English statute provided as follows: "The voter will ^o into one of 
the compartments and with a pencil provided in the compartment place a cross 
on the right-hand side opposite the name of each candidate for whom he votes, 
thus X." Under this statute it was held that it was not necessary that this 
mark should be made with the pe7icil provided in the compartment or with a 
pencil at all. A mark made with ink or with a piece of burnt stick was just as 
good as a mark made with a pencil, 2 O'Malley & Hardcastle, 215, S. C. i Ct. 
of Sess. 925. In another case it was said: "This paper appears to have been 
very faijitiy marked with a pencil. It has been argued that the mark ought to 
be made with sufficient clearness and distinctness to enable any person to count 
the votes easily and to recognize the mark with facility, but I do not find any- 
thing either in the Ballot Act or the rules which make it imperative for the 
voter to make a cross of sufficient thickness to make it easily recognizable by a 
person of Aveak sight. I have therefore come to the conclusion that the mark 
is sufficient because it is capable of being recognized as a mark, and I am of 
opinion that this vote ought to have been allowed," 3 O'Malley & Hardcastle, p. 
181 ; S. C. 44 L. T. N. S. 289. 

5. Under the statute just quoted the following ballot was counted for John 
McLaren, viz.: 



HOME. 
(David Milne Home, of Paxton House, in the shire 
of Berwick, in Scotland, a captain in the Royal Reg- 
iment of Horse Guards.) 



McLaren. 

(John McLaren, of 46 Moray Place, Edinburgh, Lord 
Advocate for Scotland.) 






709] 



CANVASS OF VOTES. 



[§ 4709^ 



It thus appears that the ballot was marked with a long cross, one part of 
which extended into the space opposite the name of Home, although the actual 
intersection of the cross was in the space opposite McLaren's name. Concern- 
ing this cross the court said: " If jou strike out the upper part of the cross, that 
is, the part opposite the name of the respondent, you still have got a perfect 
cross opposite the petitioner's name. On the other hand, if you strike off what 
is opposite to petitioner's [McLaren's] name you will have no cross at all." 
The court therefore held that the vote must be counted for McLaren, 3 O'Mal- 
ley & Hardcastle 178, S. C. 44 L. T. N. S. 289. 

The following ballot, in the same case, was not counted, because it was not 
sufficiently marked: 



X 



BALLOT PAPER. 



I 


HOME. 
(David Milxe Home, of Paxton House, in the 
shire of Berwick, in Scotland, a captain in 
the Royal Regiment of Horse Guards.) 




2 


McLaren. 

(JoH>T McLaren, of 46 Moray Place, Edin- 
burgh, Lord Advocate for Scotland.) 





It was deemed void for uncertainty as to the person voted for. 

6. The ballot must not be marked, under the English statute quoted above, 
so as to show that the voter intended to vote for more candidates than he is 
entitled to vote for, nor so as to leave it uncertain whether he intended to vote at 
all or for which candidate he intended to vote, nor so as to make it possible, by 
seeing the paper itself, or by reference to other available facts, to identify the 
way in which he voted. If these requirements are not substantially fulfilled 
the ballot is void and should not be counted ; and if it is counted, it should be 
struck out in a contest. These remarks are also applicable to the Indiana law, 
L. R. 10 C. P. 733, S. C. 30 L. T. N. S. 867, 44 L. J. C. P. 293. 

7. Notwithstanding the remarks made above, it was held in the same case 
in which they were made that while a ballot with the name of the voter or of 
the candidate voted for written opposite to the name of the latter and not 
marked with a cross, or w'ith the addition of " cu " to the cross, should be held 
void. Yet the placing of two crosses, or three crosses, or a single stroke (thus,/) 
in lieu of a cross, or a straight line (thus, |) or a mark like an imperfect letter 
P in addition to the cross, or a star instead of a cross, or a cross blurred or 
marked with a tremulous hand, or a cross placed on the left-hand side of the 
ballot paper, or a pencil line drawn throvigh the name of the candidate not 
voted for, or a ballot paper torn longitudinally through the center, was not a 
void vote, in the absence of evidence of connivance or pre-arrangement. When 
this decision was rendered there w^as in force a statute which provided that anv 
ballot so marked that " the votes can be identified, shall be void and not coanted." 
After quoting several provisions of the statute the court said: "The result 
seems to be, as to writing or mark on the ballot paper, that, if there be sub- 
stantially a want of any mark, or a mark which leaves it uncertain whether the 
voter intended to vote at all or for which candidate he intended to \ote, or if 
there be marks indicating that the voter has voted for too many candidates, or a 
writing or a mark by which the votes can be identified, then the ballot paper is 
void, and is not to be counted ; or, to put the matter afiirmatively, the paper 



§4709^] ELECTIONS. • [710 

must be marked so as to show that the voter intended to vote for some one, and 
so as to show for which of the candidates he intended to vote. It must not be 
marked so as to show that he intended to vote for more candidates than he is 
entitled to vote for, nor so as to leave it uncertain whether he intended to vote 
at all or for which candidate he intended to vote, nor so as to make it possible, 
by seeing the paper itself, or by reference to other available facts, to identify the 
way in which he has voted. If these requirements are substantially fulfilled, 
then there is no enactment and no rule of law by which a ballot paper can be 
treated as void, though the other directions in the statute are not strictly obeyed. 
If these requirements are not substantially fulfilled the ballot paper is void, and 
should not be counted; and if it is counted, it should be struck out on scrutiny. 
The decision in each case is upon a point of fact, to be decided first by the re- 
turning officer, and afterwards by the election tribunal, on petition." The court 
then holds a certain ballot void because of a mark upon it by which, "or refer- 
ence to the burgers'-roll, the way in which the voter had voted could be identi- 
fied." Of two others it was said: "There is no cross at all; and we yield to the 
suggestion made that the writing by the voter of the name of the candidate may 
give too much facility, by reason of the handwriting, to indentify the votes. 
But we can not think that the mere fact of two crosses being placed " on a ballot 
"ought to vitiate the ballot paper. There can be no doubt as to the intention 
to vote, and no doubt as to the intention to vote emphatically for the one candi- 
date. If there Avere evidence of an arrangement that the voter would place two 
marks, so as to indicate that it was he, that voter, who had used that ballot 
paper, then, by reason of such evidence, such double mark would be a mark by 
which the votes could be identified, and then the paper, upon such proof being 
made, would be rejected. But the mere fact of there being two such crosses is 
not in our judgment a substantial breach of the statute. Neither is the mere 
fact of an additional mark," " nor the mere fact of the peculiar forms of cross," 
in certain ballots, nor three crosses, nor a straight stroke in addition to the 
cross, nor a ballot marked with the letter P, nor a ballot with a pencil line 
through the candidate not voted for with a cross opposite the one voted for, 
" though in these cases also extensive evidence of arrangement might make 
such peculiarities indications of identity." A ballot marked with an oblique 
line, instead of a cross, was counted; and so were ballots on which the cross 
was placed on the left instead of the right hand, because " inasmuch as the bal- 
lot was handed in by the voter, the mark substantially indicates that the voter 
intended to vote for the candidate against whose name it is placed; " and be- 
cause the "substance of the direction" of the statute "is fulfilled, which is in 
our opinion that the voter should clearlv indicate the candidate for whom he 
intends to vote. If this be done substantially, and the absolute enactment as 
to secrecy be observed fully, we think the statute is satisfied," L. R. 10 C. P. 
733, S. C. 30 L. T. N. S. 867, 44 L. J. C. P. 293. Upon these points the case dis- 
approves 2 O'Mallev & Hardcastle, 215, S. C. i Ct. of Sess. (4 series) 925, 
where it was said that using, instead ot the cross, "a circle, or an oval, or any 
other geometrical or anomalous figure, would not be a compliance with the 
law, independently of the consideration that such a plain and willful departure 
from what was intended would suggest strongly the suspicion that some sinis- 
ter purpose Avas intended," and an oblique straight line held to render the 
ballot void. 

8. ■ In another case the marks of the ballots contested were placed in the 
square or compartment Avhere the candidate's name was printed. Thus, taking 
the example given in note 5, the cross was placed, say, in the same compart- 
ment as the word " Home." This was held to make the ballot a valid vote for 
the person whose name was in the square; as, e. £-., for Home, 2 O'Mallev & 
Hardcastle, 186, S. C. 8 Ir. C. L, 240. The statute in this case directed that ""the 
voter * * * shall place a cross on the right-hand side opposite the name of 
each candidate for whom he votes." 

9. In another case ballots were objected to on the ground that they con- 
tained marks separate from the cross, or badly formed crosses. To this the 
court said: "These are matters that run into each other so much so that it is 
impossible to lay down any clear and broad principle, and I think I must follow 
the maxim, 'De minimis non curat Praetor' (the judge regards not mere 
trifles). I am not disposed to disqualify a voter for a trifling thing such as a 



.'"] 



CANVASS OF VOTES. 



[§ 4709^ 



spot or a dot on his voting paper. No. 10S9 has the appearance of a speck or 
dot; but I shall hold it to be a good vote. Nor is mere clumsiness sufficient to 
disqualifv. Further, there may be vacillation to a certain extent in the hand, 
and the voter may go back on one leg of his cross to make it more complete, and 
so to give it the appearance of a double stroke ; but I can not disqvialify on 
that ground unless I see so much deviation from what an ordinary and rather 
rough writer would be able to do. No. 534 has a thick and clumsy line; but it 
appears to me to be nothing more than a blunder in the mode of forming the 
cross," 2 O'jNIalley & Hardcastle, 232. 

10. In Canada a statute required the voter to make " a cross with a pencil on 
any part of the ballot-paper within the division (or if there be more than one 
to be elected, within the divisions) containing the name (or names) of the candi- 
date (or candidates) for whom he intends to vote, and shall then fold up such 
ballot paper so that the initials on the back can be seen without opening it," etc. 
The following ballot papers were cast, marked as designated. 





BRECKEN. 


I 


Frederick de Saint Croix Brecken, 




of Charlottetown. 




X 




DAVIES. 


II 


Louis Henry Davies, 




of Charlottetown. 



This was considered a vote each for Brecken and Di 




-X- 



BRECKEN. 
Frederick de Saint Croix Brecken, 
of Charlottetown. 



DAVIES. 

Louis Henry Davies, 

of Charlottetown. 



-X- 



JENKINS. 

John Theophilus Jenkins, 

of Charlottetown. 



First cross allowed for Brecken ; second disallowed. 




JENKINS. 

John Theophilus Jenkins, 

of Charlottetown. 



X 



LAIRD. 
David Laird, 

of Charlottetown. 



These were deemed valid votes. 



§ 4709«] 



ELECTIONS. 



[712 



I 


BRECKEN. 
Frederick de Saint Croix Brecken, | 
of Charlottetown. 


II 


DAVIES. 

Louis Henry Davies, 

of Charlottetown. 


X 


III 


JENKINS. 

John Theophilus Jenkins, 

of Charlottetown. 


X 



These votes were allowed respectively for Brecken, Davies and Jenkins. 



II 



III 



DAVIES, 
Louis Henry Davies, 
of Charlottetown. 



as 



JENKINS. 
John Theophilus Jenkins, 
of Charlottetown. 



se 



Neither of these votes were allowed. So a ballot with the cross (X) on the 
back corresponding with the division of the person claiming it was a vote for 
him was disallowed, 7 Can. Supr. Rep. 247. 

11. More than one cross, under this statute, is no objection, or even an in- 
verted V, or the fact that the cross is not directly opposite the name of the can- 
didate, if there are only two names on the ballot paper and a line is drawn 
dividing the paper in the middle. It was said that whenever the mark evi- 
denced an attempt to make a cross, though the cross may be in some respects 
imperfect, the ballot should be counted, unless from the peculiarity of the mark 
made it can be reasonably inferred that there was not an honest design sim^ply 
to make a cross, but that there was also an intention so to mark the paper that 
it could be identified, in which case the ballot should be rejected. But if the 
mark made indicates no design of complying with the law, but on the contrary 
a clear intent not to mark with a cross as the law directs ; as, for instance, by 
making a straight line or round O, then such non-compliance with the law 
renders the ballot null, 8 Can. Supr. Ct. 676. With reference to a straight 
mark, it will be perceived this case differs from the English case quoted above. 
So in another case it was held that ballots with a cross to the right just after 
the candidates name, but in the same column and not in the column on the 
right-hand side of the name; or with an ill-formed cross, or with small lines at 
the ends of the cross, or with a line across the center or one of the limbs of the 
cross, or Avith a curved line like the blades of an anchor, were valid. But bal- 
lots Avith a single stroke ; or Avith the candidates name Avritten thereon in addi- 
tion to the cross; or Avith marks in addition to the cross, by Avhich the A-oter 
might be identified, although not put there by the voter in order that he might 
be identified; or marked Avith a number of lines, or Avith a cross for each can- 
didate for the same oflice, were void, Hodgins El. Cas. 671; S. C. 11 U. C. LaAv 
Jour. 163; 10 Commons Law Journal, 1876, p. 24. Affirmed, 37 Q^ B. (Canada) 
234. To same effect, 20 L. C. Jur. 22 ; 12 L. C. Jr. 1 13 ; Hodgins El. Cas. 725. 

12. Crosses to the left of the name is not a sufficient marking, 12 L. C. Jr. 
113; 20 L. C. Jur. 22. So a straight mark or a cross on the back is insufficient, 
as previously remarked. Hodgins El. Cas. 531. But a cross in ink, with a du- 



713] CANVASS OF VOTES. [§ A^'JOga 

plicate blotted cross in the next candidate's square, made by folding the ballots 
before dry, is valid, i Australian Jur. R. 150; 12 Can. L. Jour. 113. 

\ia. In Canada, if the cross is not unmistakably above or below the line 
separating the names of the candidates, the ballot is bad, Haldimand t'^. Walsh, 
15 Can. Sup. Ct. 495. See Regina vs. Ferguson, 10 Can. L. T. 98. The statute 
of Connecticut provides that" in addition to the official indorsement, the ballots 
shall contain only the names of the candidates, the office voted for, and the 
name of the political party issuing the same." It was held that the validity of 
the ballots was not affected by the presence or absence of the Avord " for" before 
the office voted for, and, where all the ballots used by a party either contain or 
omit the words, the validity thereof is not affected by the provisions of the act, 
that, if any ballot "shall contain any mark or device, so that the same rnay be 
identified in such manner as to indicate who may have cast the same, it shall 
not be counted." The statute also provides that "in addition to the official 
indorsement, the ballots shall contain only the names of the candidates, the of- 
fice voted for, and the name of the political party issuing the same," and de- 
clared that a failure to comply with which renders the ballot void. It was held 
that the presence on the ballot of a name for an office which could not be filled 
at the election rendered it void, as also the addition to the words "For Town 
Clerk" of the words "and e.v officio Registrar of Births, Marriages, and Deaths," 
that being no part of his title, but an expression of his avithority under the 
general statutes, Fields -'5. Osborne, 21 Atl. Rep. 1070. SeeTalcott vs, Philbrick, 
20 Atl. Rep. 436. 

RULES FOR COUNTING BALLOTS, 

13. The following rules will be found convenient in counti-ng the ballots: 

(«.) If a ballot is wholly vmstamped it can not be counted at all. 

{h.) If a ballot is not stamped in the square at the top of the title head of 
either ticket it shall then be counted only for the individual to the left of whose 
name the square has been stamped. 

(c) If all or more than o?te of the squares at the top of the several party 
titles are stamped the ballot must be treated as if no title was stamped, and it 
can not be counted for the individuals, if any, to the left of whose names the 
square has been stamped. 

[d.) If the squares in front of the names of two or more candidates for the 
same office are stamped the ticket must not be counted, for it is void. 

{e.) If the square at the top of the title of any one ticket shall have been 
stamped, then all the names under that title shall be counted. 

{f.) If the large square is stamped, a stamp elsewhere on the ballot makes 
it void. A stamp that touches a square must be counted on that square; but a 
stamp that touches no square makes the ballot void. 

ig.) To the above rule there is one exception, and only one exception: If 
there should be no candidate for one or more offices under a large square thus 
stamped, it is permissible to stamp in front of the name of a candidate on some 
other ticket for such office, but no other. 

{h.) If the squar.e at the top has been stamped, and also each or any name 
under it, the ticket can not be counted, for it is void. 

[i.) If the title of a ticket is stamped, and no names under that title 
stamped, but names under other unstamped titles are stamped, then the ticket 
is void. 

( /.) If any ticket is found not indorsed with the initials of the poll clerks, 
or if any ticket bears any distinguishing mark or mutilation, it shall not be 
counted; so, if any ticket properly indorsed, and not mutilated, is so made up 
that it is impossible to determine from the ballot the elector's choice of candi- 
dates, such ballots shall not be counted as to the candidate or candidates afiected 
thereby, but should be counted as to the candidates not thereby affected. 

{k.) In making the count, if any member of the board shall protest or object 
to the decision of a majority thereof as to counting or not counting the ticket, 



§§4/10,4710^] ELECTIONS. [7 1 4 

such ballots must be preserved by the inspector, and the poll clerks must record 
on the tally sheets a memorandum, stating how the tickets were stamped and 
counted, describing them for identification, 

(/.) A frotest does not^in any sense^mcan that the ballot shall not he counted. 
It must he counted, notwithstanding the protest, if a majority of the board so 
decide^ and the only j>erso7is to decide are the inspector and tvjo jtidges. 

{vi.) The United States supervisor has absolutely nothing to do concerning 
the counting of the state tickets. His only duty is with reference to the local 
ballots on M-hich is printed the names of the candidates for congress or for 
presidential electors. As to these, he is required to keep a record of all irregu- 
larities on blanks furnished, with instructions by chief supervisor. 

[1SS5, p. 153. Approved April 8, 1885, and in force June 18, 1885.] 

Sec. 4710. Manner of counting votes. 32. When the polls are 
closed, the inspector and judges shall open the ballot-box, and 
commence counting the votes ; when the ballots shall be taken out 
carefully, one by one, by the inspector, who shall open them as he 
takes them out, and read aloud the name of each person printed 
01 written thereon, and the office for which every such person is 
voted ; and the judge of elections of opposite politics from such 
inspector, shall have the right of inspecting and looking over such 
ballot during the time such inspector reads the same aloud, and 
may call attention to any mistake in such reading aloud. Such 
inspector shall then hand the ballot to such judge, who shall exam- 
ine the same, and hand it to the other judge, who shall string it 
on a thread of twine. [El. Sup. § 1322.] 

This and § 4709a must be construed together. No name however written 
or stamped on a ballot can now be counted. Pasters can only be used under 
§ 4701(7 • and if used, unless in accordance wath the provisions of that section, 
the ballot will not be counted. Construed, 61 Ind. p. 422. 

[18S9, p. 157. Approved March 6, 1889, and in force May 10, 1889.] 

Sec. 4710^. Destruction of election papers. 53. Any person who 
shall (i) falsely make or fraudulently deface or fraudulently destroy 
any certificate or petition of nomination, or any part thereof; (2) 
file any certificate or petition of nomination, knowing the same, or 
any part thereof, to be falsely made ; or (3) suppress any petition 
or certificate of nomination which has been duly filed, or any part 
thereof; or (4) forge or falsely .make the official indorsement of 
any ballot; or (5) print, or cause to be printed, any imitation bal- 
lot, or circulate the same; or (6) .conspire with others to do any of 
said acts, or induce, or attempt to induce, any other person to do 
any of said acts, whether or not said acts, or any of them, be com- 
mitted, or attempted to be committed, shall be deemed guilty of 
a felony, and upon conviction thereof shall be punished by imprison- 
ment in the state penitentiary not less than two nor more than five 
years, and be disfranchised for any determinate period not less 
than ten years. [El. Sup. § 1375.] 

This. section applies to city and town elections. It has no corresponding sec- 
tion in the act of 1881. 



715] ELECTION CRIMES. [§§47IO<^ 4/10^ 

Sec. 4710(^. Opening or destroying ballots. 54. Any clerk, In- 
spector or other messenger entrusted with the custody of ballots 
who shall open any of the packages in which the ballots are con- 
tained, or permit any of them to be opened, or destroy any of 
such ballots, or permit them to be destroyed; or give or deliver 
any such packages or ballots to any person not lawfully entitled to 
receive them, as herein provided ; or conspire to procure, or in any 
way aid, abet or connive at any robbery, loss or destruction of any 
such ballots or packages, shall be guilty of a felony, and on convic- 
tion shall be punished by imprisonment in the state prison for not 
less than three nor more than ten years, and be disfranchised for 
any determinate period not less than ten years. [EL Sup. § 1376.] 

This section applies to city and town elections. It has no corresponding 
section in the act of 1881. 

Sec. 4710(f. Unlawfully entering election room. 55. If any per- 
son not herein authorized so to do shall enter or attempt to enter 
the election room, or enter or attempt to enter within the railing 
leading from the challenge window to the entrance of the election 
room without first having been passed by the challengers, or hav- 
ing been sworn in as hereinbefore provided, or shall remain within 
fifty feet of the polling place, contrary to the provisions hereinbe- 
fore made, he shall be guilty of a misdemeanor, and on conviction 
thereof be «fined not more than five hundred dollars. [El. Sup. 
§ I377-] ■ 

This section applies to city and town elections. It has no corresponding 
section in the act of 1881. See § 471 1. 

Sec. 4710^. Inducing elector how to mark his ballot. 56. If any 

person shall induce, or attempt to induce, any elector to write, 
paste, or otherwise place on his ballot the name of any person or 
any sign or device of any kind as a distinguishing mark by which 
to indicate to any other person how such elector has voted, or 
shall enter into or attempt to form any agreement or conspiracy 
with any other person to induce or attempt to induce electors, or 
any elector, to so place any distinguishing name or mark on his 
ballot, whether or not said act be committed or attempted to be 
committed, such person so offending shall be guilty of felony, and, 
on conviction, be imprisoned not more than five nor less than two 
years in the State's prison. [El. Sup. § 1378.] 

This section applies to cities and towns. It has no corresponding section in 
the act of 1881. 

Sec. 4710^. Eevealing how elector voted. 57. If any person, being 
a member of an election board or otherwise entitled to [the] in- 
spection of the ballots, shall reveal to any other person how any 
elector has voted, or what other candidates were voted for on any 
ballot bearing a name not printed thereon by the board of election 



g§47io/> 47io<r] ELECTIONS. [716 

commissioners, or give any information concerning the appearance 
of any ballot voted, such persons so offending shall be guilty of a 
felony, and, on conviction, shall be imprisoned not less than two 
years nor more than five years in the State's prison, and be dis- 
franchised for any determinate period not less than ten years. [El. 
Sup. § 1379.] 

1. This section applies to citj and town elections. It has no corresponding 
section in the act of 1881. See § 4710//. 

2. Inadvertently giving information how an elector voted is as much an 
oltense as giving it deliberately. The statement of the voter how he voted, un- 
contradicted, is a sufficient evidence of the charge that he did so vote, in an 
action against cwie giving information as to how such elector voted, 8 Ir. C. L. 50. 
Leavmg a paper in the election room, which shows how an elector voted, is no 
oifense, unless some one read the paper, 4 C. P. Div. 191, S. C. 48 L. J. M. C. 
89; 40 L. T. 589; 27 W. R. 620. 

Sec. 4710/. Inducing' member of election board to violate preced- 
ing section. 58. If any person shall induce or attempt to induce 
any member of an election board to violate any of the provisions 
of section 47 [57], [§ 47 lo^'] whether or not such member of the 
election board shall violate or attempt to violate any of the pro- 
visions of this act, such person so offending shall be guilty of a 
felony, and, on conviction, shall be imprisoned in the State's 
prison not less than two years nor more than five years, and be 
disfranchised for any determinate period not less than ten years. It 
shall be the duty of each inspector to distinctly read this and the 
preceding section to the election board at the opening of the polls, 
and each member thereof shall thereupon take an oath that he has 
not violated and will not violate the provisions of s^id section. 
[El. Sup. § 1380.] 

This section applies to city and town elections. It has no section corre- 
sponding to it in the act of 1881. 

Sec. 4710^. Removing or destroying cards, etc. 59. Any person 
who shall, during the election, remove or destroy any of the sup- 
plies or other conveniences placed in the booths as a/oresaid or 
delivered to the voter for the purpose of enabling the voter to pre- 
pare his ballot, or shall, during an election, remove, tear down or 
deface the cards printed for the instruction of the voters, or shall, 
during an election, destroy or remov-e any booth, railing or other 
convenience provided for such election, or shall induce or attempt 
to induce any person to commit any of such acts, whether or not 
any of such acts are committed or attempted to be committed, 
shall be guilty of a misdemeanor, and on conviction shall be pun- 
ished by imprisonment for not less than six months nor more than 
one year and be disfranchised for any determinate period not less 
than ten years. [El. Sup. § 1381.] 

This section applies to cities and towns. It has no corresponding section in 
the act of 1881. 



yij'j CONSTITUTIONAL AMENDMENTS. [§§4/10/^ 47 I Q/* 

Sec. 4710//. Electioneering. 60. No officer of election shall 
disclose to any person the name of any candidate for whom any 
elector has voted. No officer of election shall do any electioneer- 
ing on election day. No person whatever shall do any election- 
eering on election day within any polling place, or within fifty feet 
of any polhng place. No person shall apply for or receive any 
ballot in any polling place other than that in which he is entitled 
to vote. No person shall show his ballot after it is marked to any 
person in such a way as to reveal the contents thereof or the name 
of any candidate or candidates for whom he has marked his vote ; 
nor shall any person examine a ballot which any elector has pre- 
pared for voting or solicit the elector to show the same. No per- 
son except the inspector of election, or judge who may be tem- 
porarily acting for him, shall receive from any voter a ballot 
prepared by him for voting. No person shall receive a ballot from 
any person other than one of the poll clerks ; nor shall any person 
other than a poll clerk deliver a ballot to an inspector to be voted. 
No voter shall deliver any ballot to an inspector to be voted, except 
the one he receives from the poll clerk. No voter shall place any 
mark upon his ballot or suffer or permit any other person to do so, 
by which it may be afterward identified as the one voted by him. 
Whoever shall violate any provision of this section shall be deemed 
guilty of a felony, and on conviction shail be punished by imprison- 
ment for not less than six months nor more than one year, and by 
fine of not less than one hundred dollars nor more than five hun- 
dred dollars, and be disfranchised for any determinate period not 
less than ten years. [El. Sup. § 1382.] 

This section applies to city and town elections. It has no corresponding 

section in the act of 1881. See § 4710^. 

Sec. 4710z'. Officer neglecting dnty. 6i. Any public officer, upon 
w^hom any duty is imposed by this act, who shall" willfully neglect 
or omit to perform such duties, or do any act prohibited herein, 
for which punishment is not otherwise herein provided, shall be 
deemed guilty of a felony, and, on conviction, shall be punished by 
imprisonment in the State's prison for not less than six months nor 
more than three years, or by a fine of not more than three thousand 
dollars, or by both such fine and imprisonment, and be disfran- 
chised for any determinate period not less than ten years. [El. 
Sup. § I3§3-] 

This section appli-es to cities and towns. It has no corresponding section in 
the act of 1881. 

Sec. 4710;'. Constitutional amendments. 62. Whenever any con- 
stitutional amendment or other question is required by law to be 
submitted to popular vote, if all the electors of the State are entitled 
to vote on such question, the state board of election commissioners 
shall cause a brief statement of the same to be printed on the state 



§§47IO^' 4710;;^] ELECTIONS. [/iS 

ballots, and the words "yes" and ''no" under the same, so that 
the elector may indicate his preference by stamping at the place 
designated in front of either word. If the question is required by 
law to be voted on by the electors of any district or division of the 
State the board or boards of election commissioners of the county 
or counties, including or included in such division or district, shall 
cause similar provision to be made on the local ballots. In case 
any elector shall not indicate his preference by stamping in front 
of either word the ballot as to such question shall be void and shall 
not be counted. [El. Sup. § 1384.] 

This section applies to cities and towns, especially on a vote for water-works, 
§ 3265. It has no corresponding section in the act of 1881. See § 4706. • 

Sec. 4:710k. Disposition of affidavits. 63. All affidavits provided 
in this act to be used on the day of election at the several polling 
places shall, at the close of the count, be placed in a strong paper 
bag, or envelope, by the election board and securely sealed by 
them, each member indorsing his name on the back of such bag or 
envelope. Such bag or envelope shall be delivered within three 
days after the election, by the inspector, to the clerk of the circuit 
court of the county, whose duty it shall be to carefully preserve 
the same, and deliver it, with the seal unbroken, to the foreman 
of the grand jury when next in session. It shall be the duty of 
such grand jury to inquire into the truth or falsity of such affidavits. 
[El. Sup. § 1385.] 

This section applies to cities and towns, the city and town clerk's office being 
the place of deposit. It has no coi-responding section in the act of 1881. 

Sec. 4710/. County and township election, 64. When any town- 
ship or county holds an election at a time other than the time of a 
general election, such election shall be held in conformity with the 
provisions of this act, and all county and local officers who are 
required to perform any duties in connection with the general elec- 
tion shall perform the same duties in connection with such special 
or local election, subject to the same provisions and penalties herein 
prescribed in case of general elections. [El. Sup. § 1386.] 

This section applies to special elections in cities and towns. Its correspond- 
ing section in the act of 1881 is § 4734. 

[1891, p. 124. Approved March 6, 1891, and in force June 3, 1891.] 

Sec. 4710;^. City and town elections. 65. Where any town or 
t city shall hold an election at any time other than a time of a gen- 
eral election, such election shall be held in conformity with the pro- 
visions of this act, except the duties herein required of the county 
clerk shall be performed by the town or city clerk; the duties 
herein required of the board of county commissioners shall be per- 
formed by the town trustees or city council; the duties of the 
county sheriff" shall be performed by the town marshal or chief of 



719] HOLIDAYS. [§§ 4710:^, 42100 

police, and the rights of nomination of election officers by political 
parties shall be exercised by the chairman of the town or city com- 
mittees of such parties, if any such there be. Town and city offi- 
cers are hereby required to perform the various duties herein pre- 
scribed for the county officers in whose stead they act, subject to 
the same penalties and provisions herein prescribed as to such 
county officers. The town and city boards of election commission- 
ers shall provide the necessary stamips and ink pads for such elec- 
tions, and shall cause as many classes of ballots to be printed as 
there are wards or districts entitled to separate officers, ballots of 
each class having printed uniformly on the back of the same, the 
name or number of the ward or district in which it is to be used, 
and containing the names of all lawfully nominated candidates for 
all offices that the voters of such ward or district are entitled to 
vote for at such election. The commissioners of county and 
trustees of townships in which such towns or cities are situated 
shall furnish what is necessary for use in such elections of the elec- 
tion furniture in their custody : Provided, That such town or city 
shall pay the expense of moving such furniture to and from the 
polling places, and also for any damage to, or loss of such furniture. 
The boards of town or city election commissioners shall perform 
all the duties in providing and preparing poUing places that are 
required of county commissioners in county elections, subject to 
the same provisions and penalties. 

A section quite similar to this, and even now in force, is section 60 of the act 
of 1881, being § 3224. See also § 3045, in case of cities, and § 3307, in case of 
towns. 

[1889, p. 425, Approved March 11, 1889, and in force May 10, 1889.] 

Sec. 4710;z. Legal holidays. 66. All election days shall be legal 
holidays throughout the district or municipality in which the elec- 
tion is held. 

This section has no corresponding section in the act of 1881. 

Sec. 4710^. Laws repealed — Saving clause. 6^. All laws and 
parts of laws inconsistent with the provisions of this act are hereby 
repealed, pro tanto : Provided, however, That nothing in this act 
contained shall impair the effect of any such act as to any offense 
heretofore committed under existing laws : And, provided further, 
That the provisions of this act shall not apply to any election to 
be held prior to the first Monday in June, 1890, and all elections to 
be held prior to said date of the first Monday of June, 1890, shall 
be held and conducted under the provisions of the law^s now in 
force, and all elections to be held after the first Monday in June, 
1890, shall be provided for and held under the provisions oi this 
act. 

This section repeals all election laws generally or especially applying to 
cities or towns in so far as the election law of 1889 (of which the above section 
is a part) is in conflict with them. 



§§47^1—4713] ELECTIONS. [720 

[1S81, p. 4S2. Approved April 21, iSSi,and in force September 19, 1881.] 

Sec. 4711. Witnesses to counting — Misdemeanor, 33. Any polit- 
ical party having candidates or a candidate to be voted for at any 
election may be represented by two qualified voters of such pre- 
cinct in the room where the votes are counted, who may witness 
the counting of the votes and remonstrate against any fraud or 
irregularity that may occur: Provided, That such persons shall con- 
duct themselves m a quiet and orderly manner, and shall not inter- 
rupt the board in the discharge of its official duties, except to state 
and file such protest. Said persons may be selected by the central 
committee of the county or township in which such precinct is 
located, or by the candidates to be voted for or a majority of them, 
or by the voters of the respective parties then present :^ Provided, 
That no person shall be admitted to the room where the election 
board is sitting, save only the members of the board, the sworn 
clerks, and the witnesses herein provided for : A7id pivvided, fur- 
ther, That such witnesses shall enter the protests provided for herein 
in writing, and they shall be kept by the inspector and returned with 
the election returns and papers to the clerk's office, as provided in 
this act: And provided, further, That if the members of such elec- 
tion board, or any of them, shall, at any time during the progress 
of such election, refuse admittance to their room to any such wit- 
nesses, selected as provided for in this act, the person so offending 
shall be deemed guilty of a misdemeanor, and, upon conviction, 
may be fined therefor, by the proper court or jury trying the cause, 
in any -sum not less than five dollars nor more than fifty dollars. 

1. This section is in force, notAvithstanding § 4710c/ and applies to cities 
and towns. 

2. At an election for which a congressman is voted for, United States 
supervisors are entitled to be present from the opening of the polls until the cer- 
tificates of election are completed and signed. 

Sec. 4712. Certificate of judges. 34. When the votes shall be 
counted, the board of judges shall make out a certificate, under 
their hands, stating the number of votes each person has received, 
and designating the office ; which number shall be written in 
words ; and such certificate, together with one of the lists of voters 
and one of the tally-papers, shall be deposited with the inspector, 
or with one of the judges selected by the board of judges. 

This and § 3047, in case of cities, and § 3309, in case of towns, must be con- 
strued together. 

Sec. 4713. Care of ballots and papers. 35. As soon as the votes 
are counted, and before the certificate of the judges, as prescribed 
in the foregoing section, is made out, the ballots, with one of the 
lists of voters and one of the tally-papers, shall, in the presence of 
the judges and clerks, be carefully and securely placed by the in- 
spector, in the presence of the judges, in a strong and stout paper 
envelope or bag, which shall then be tightly closed and well sealed 



72l] CARE OF BALLOTS. [§§4714,4715 

with wax by the inspector, and shall be delivered by such inspector 
to the county clerk at the very earliest possible period before or on 
the Thursday next succeeding said election ; and the inspector 
shall securely keep said envelope containing the ballots and papers 
therein, and permit no one to open said envelope or touch or tam- 
per with said ballots or papers therein. And upon the delivery of 
such envelope to the clerk, said inspector shall take and subscribe 
an oath, before said clerk, that he has securely kept said envelope 
and the ballots and papers therein, and that, after said envelope 
had been closed and sealed by him in the presence of the judges 
and clerks, he had not suffered or permitted any person to break 
the seal or open said envelope, or touch or tamper with said ballots 
or papers, and that no person has broken such seal or opened said 
envelope to his knowledge ; which oath shall be filed in said clerk's, 
office with the other election papers. 

This section is now modified by § 47056/ and ail ballots, except disputed 
ones, are now destroj-ed ; but such disputed ballots are sealed and delivered to 
the county clerk, 61 Ind. 422. All of this section, with this exception, seems to 
be in force. This section applies to cities and towns. See 4709a. 

Sec. 4714. Clerk's and trustee's duties. 36. The clerk shall se- 
curely keep said envelope, so sealed, with the ballots and papers 
therein, in the same condition as it was received by him from the 
inspector, in his office (unless opened by said inspector, in the 
presence of the board of canvassers, as herein provided), for the 
period of six months. But when such election is contested, he 
shall preserve them so long as such contest is undetermined, sub- 
ject to the order of the court trying such contest: Provided, That 
said inspector shall, after seaHng said envelope containing such 
ballots and one of his poll-books and tally-papers, plainly mark 
said envelope upon the outside, in ink, with the name, number, 
and township. And after each election the ballot-box herein pro- 
vided for shall be, by said inspector, deposited with the township 
trustee of the township in which his precinct is situate, for safe- 
keeping. And said officers of election shall, upon receiving the 
pay for their services as such from said township trustee, deliver to 
him the keys to said ballot-box in their custody. 

1. This section applies to cities and towns, and is slightly modified by 
§ 4709^. See § 4713, note. 

2. In state, county and township elections, where the inspector of a pre- 
cinct is not a trustee, such inspector pays the oflicers of election. In the case of 
a city or town the inspector procures the mone}- , after an allowance by the 
council or board of town trustees, from the city or town treasurer, and pays 
them. 

Sec. 4715. Board of canvassers. 37. The inspectors of each 
township or precinct, or the judges of election to whom the certifi- 
cates, poll-books, and tally-papers shall have been delivered, as 
provided for in this act, shall constitute a board of canvassers, who 
shall canvass and estimate the certificates, poll-lists, and tally-papers 
46 



§§47 1 6 4718] ELECTIONS. [722 

returned by each member of said board ; for which purpose they 
shall assemble at the court-house on the Thursday next succeeding 
such election, between the hours of ten a. m. and six o'clock p. m. 

1. The inspectors of city elections^ in the canvass of votes to ascertain the 
persons chosen at a city election, are officers, and together constitute a board, 
39 Ind. 488. The same is true of town inspectors, where there is more than 
one voting precinct in the town. The inspectors of the several precincts con- 
stitute the board of canvassers. 

2. Where there is only a tovj7iship election the inspectors of the precinct 
constitute the board, and if there is only one precinct, any two of the judges 
of that precinct may declare the result immediately after it is ascertained, or 
they may m.eet on the following Thursday and make out the certificates. The 
fact that they call in the county auditor, or any other person, to aid them does 
not vitiate the result, 69 Ind. 324. 

Sec. 4716. Officers of board. 38. The members of such board 
who shall assemble at such time and place shall select one of their 
number as chairman, and the clerk of the circuit court shall act as 
their clerk. 

The clerk of the circuit court is ex officio clerk of the election board of the 
county, 2 Ind. 423. 

Sec. 4717. Duties of board. 39. Such board, when organized, 
shall carefully compare and examine the papers intrusted to it, and 
aggregate and tabulate from them the vote of the county ; a state- 
ment of which shall be drawn up by the clerk, and shall contain 
the names of the persons voted for, the office, the number of votes 
given in each township and precinct to each person, the number 
of votes given to each in the county, and also the aggregate num- 
ber of votes given; Avhich statement shall be signed by each 
member of said board; which canvass-sheet, together with such 
certificates, poll-books, and tally-papers shall be delivered to the 
clerk, and by him filed in his office. The same shall be preserved 
by him, open to the inspection of any legal voter of the county, 
or district, or State. 

The board of canvassers acts ministerially ; and if they unlawfully fail to 
perform their duty, or perform it in an unlawful manner, whereby a person is 
injured, they are liable, and the complaint therefor need not allege that they 
acted maliciously, purposely or by mistake, 59 Ind. 152. 

Sec. 4718. Certificate. 40. Such board shall declare the person 
having the highest number of votes given for any office to be filled 
by the voters of a single county duly elected to such office, and 
certify the same in the statement above required. 

1. The statement and declaration of the result of a general election, made 
by the board of canvassers, are, at the most, merely /r/;«a facie evidence of the 
result, 61 Ind. 392; loi Ind. 36. 

2. But in a proceeding by information to oust an incumbent- of an office 
holding over after the expiration of his term, in favor of another holding a cer- 
tificate of election as successor of the former, the defendant can not attack such 
certificate by showing that the said holder was not elected to such office, and 
that a third person was elected, 102 Ind. 90. 



723] BOARD OF CANVASSERS. [§§47^9 4/21 

Sec. 4719. Tie-vote. 41. If two or more persons shall have the 
highest and an equal number of votes for a single ofi^ce to be filled 
by the voters of a single county, such board shall forthwith declare 
that no person is elected to fill such office, and shall certify the 
same in its statement ; and, when filed, the clerk shall certify that 
fact to the tribunal whose duty it is to supply vacancies in such 
of^ce or to issue a writ of election to fill the same, as the case 
may require. 

1. In view of the fact that all elections must be by ballot, as declared by the 
constitution, it has been questioned whether this section is valid ; for when two 
candidates have the highest and equal number of votes, neither is elected it is 
said, and to permit the selection of one by lot is the election of a person to an 
office without.the use of the ballot. But it has been decided that such a deter- 
mination of the matter is a valid determination, 27 N.E.Rep.422. 

2. A township trustee was a candidate for re-election, and he and his 
opponent received an equal number of votes. The trustee refused to discharge 
the duties required of him in a case of a tie, and continued to act as township 
trustee. This action was held not to create a vacancy, and the county auditor, 
therefore, had no power to fill the office by appointing a trustee, as in case of a 
vacancy, 46 Ind. 307. 

Sec. 4720. Defective papers — Duty of board. 42. No tally-paper, 
poll-book, or certificate returned from any election by the board 
of judges thereof, shall be rejected for want of form nor for lack 
of being strictly in accordance with the directions herein con- 
tained, if the same can be satisfactorily understood ; and such 
board of canvassers shall, in no case, reject the returns from any 
precinct if the same be certified by the board of election of that 
precinct, as required by law, and presented to them by the in- 
spector or one of the judges of said board. 

1. The acts of canvassers are ministerial; and if they unlawfully fail to per- 
form their duty, or perform it in an unlawful manner, wjiereby a person is 
injured, they are liable, 59 Ind. 152. 

2. It is improper for the board to hear evidence touching irregularities at 
the election. The face of the tally-papprs, and the certificate made by the in- 
spectors, judges, and clerks, are its guide, 59 Ind. 152. 

3. When the returns fail to state what office parties named are voted for 
they are void for uncertainty, and the canvassers should reject them, 59 Ind. 152. 

4. The statement and declaration of the result of a general election, made 
by the board of canvassers, are, at most, merely prima facie evidence of the 
result, 61 Ind. 392. 

5. They can not consider any question relative to the validity of the election 
held; they can only cast up the votes given for each person from the proper 
election documents, and declare the person who, upon the face of such docu- 
ments, appears to have received the highest number of votes given, duly electtd 
to the ollice for which the votes were cast, 2 Ind. 423 ; 39 Ind. 4S8. 

Sec. 4721. Certificate of election. 43. Where any person is 
elected to an office by the voters of a county not to be commis- 
sioned by the governor, the clerk of the circuit court shall, after 
ten days from the time the board of canvassers has made its re- 
turn, make out and deliver, on demand, to such person, a certifi- 
cate of his election ; and in case where any officer is to be com- 



§§ 4/22 — 4/26] ELECTIONS. [724 

missioned by the governor, he shall make out a statement, under 
his hand and the seal of his court, specifying the number of votes 
given to each person for each office, and who has been declared 
elected, and shall transmit the same, by mail, to the secretary of 
state, within the time aforesaid. 

1. Mandaimis lies to compel election inspectors to give a certificate of elec- 
tion to the person who, upon the face of the proper election documents, appears 
to have received the highest number of votes given, 39 Ind. 488. 

2. A^ commission is not necessary to the right to exercise the duties of the 
office to which a successful candidate has been chosen, 20 Ind. i ; 21 Ind. 516; 
33 Ind. 391; 26 N. E. Rep. 866. The person elected is entitled to the office at 
the commencement of his term, notwithstanding a contest of such election may 
be pending; and a commission issued to him'after the termination of the con- 
test should be made for the term for which he was elected, commencing, not at 
the date of the contest, but at the date at which he was entitled to the posses- 
sion of the office, 33 Ind. 391, R. S. 1S81, § 1136; 64 Ind. 189; 61 Ind. 379; loi 
Ind. 36. 

Sec. 4722. Defective returns — Commissions. 44. No commission 
shall be withheld by the governor on account of any defect or 
informality in the return of any election to. the office of the secre- 
tary of state, if it can, with reasonable certainty, be ascertained 
from such return what office is intended and who is entitled to 
such commission. 

Sec. 4723. Certificate of votes for legislators. 45. When two or 
more counties compose a district to elect a senator or representa- 
tive, the clerks of the circuit courts of such counties, on the day 
next succeeding the return-day of such election, shall make out a 
certificate of votes received by each individual for senator or rep- 
resentative, and deliver the same to the sheriff 

Sec. 4724. Certificate of election of legislators. 46. Such sheriffs 
shall meet on the Wednesday next following the return-day of such 
election, between the hours of one and six of the afternoon, at the 
court-house of the oldest county in such district, where they shall 
compare the certificates delivered to them by the clerks, and shall 
jointly make out and transmit to the person having the highest 
number of votes for senator or representative a certificate of his 
election. The county first organized (or, if two or more were 
organized at the same session, then the county having, by the 
auditor of state's last report, the highest number of taxable polls) 
shall be deemed the oldest. 

Sec. 4725. Tie-vote for legislators. 47. If, in such case, any two 
or more persons shall have the highest and an equal number of 
votes for the same office, such sheriffs shall certify that fact to the 
clerk of the circuit court of the county in which such sheriffs shall 
have compared such votes, and such clerk shall forthwith certify 
the same to the governor. 

Sec. 4726. Certificate to secretary of state. 48. Clerks of the cir- 
cuit court, on the day succeeding the return-day of such election, 



725] CERTIFICATE OF ELECTION. [§§ 4/2/, 4/28 

shall make out, in words, certified statements, officially sealed, 
of the number of votes given to each person for governor and 
lieutenant-governor, for representative in congress, judges of the 
supreme and circuit courts, clerk of the supreme court, reporter 
of the decisions of the supreme court, prosecuting attorney, super- 
intendent of public instruction, secretary, auditor, and treasurer 
of state, and for senator and representative in the general assembly, 
and shall deliver the same to some postmaster of the county, to be 
transmitted, by mail, to the secretary of state, taking from such 
postmaster, and filing, a certificate setting forth particularly the 
time when such certified statement was deposited in such post- 
office. 

^Mandamus lies to compel the clerk to perform this duty, 2 Ind. 423; for his 
duties are clearly ministerial, 19 Ind. 356. But it will not lie if the election is' 
clearly void, 17 Ind. 554; 19 Ind. 356. 

Sec. 4727. Duty of secretary of state. 49. The secretary of state 
shall, in the presence of the governor, compare and estimate the 
number of votes given for judges of the supreme court, reporter 
of the decisions of the supreme court, clerk of the supreme court, 
secretary, auditor, and treasurer of state, and superintendent of 
public instruction, and certify to the governor the persons receiv- 
ing the highest number of votes for such offices, and also compare 
and estimate the number of votes given for judges of the oircuit 
court and prosecuting attorneys, and certify to the governor the 
persons having received the highest number of votes in their 
respective districts ; and, thereupon, the governor shall transmit, 
by mail, to such persons their commissions- 

The governor's commission is only prima facie evidence of its own recitals, 
61 Ind. 379; no Ind. 272. He can not be compelled by mandate to issvie a 
commission, 127 Ind. 589 (overruling in fact 72 Ind. 567; 6 Ind. 496; 33 Ind. 
517)- 

Sec. 4728. Secretary of state and governor, as to congressmen. 

50. The secretary of state, as soon as he shall receive such certified 
statements, shall compare and estimate the votes given for repre- 
sentatives in congress, and certify to the governor the persons 
having the highest number of votes as duly elected ; and the gov- 
ernor shall give to each of the persons returned to him, as afore- 
said, a certificate of his election, sealed with the seal, and attested 
by the secretary of state : Provided, That no return of any county 
which has come into his hands, and which has been duly authen- 
ticated by the clerk thereof, under seal, as hereinbefore provided, 
shall' be rejected by said secretary of state, but he shall estimate, 
aggregate, and tabulate, and report to the governor the total num- 
ber of votes cast in each county for each candidate for state office, 
supreme judge, or other officer to be elected by all the voters of 
the State, and members of congress, as evidenced to him by the 
face of such return so certified to him. 



§§4729 4732] ELECTIONS. [726 

Sec. 4729. Clerk's duty as to election of governor. 5I. Each 
clerk of the circuit court shall, on the day following the return-day 
of an election for governor and lieutenant-governor, make out, at 
full length, two certified statements, under the seal of his court, 
of the number of votes each candidate received; one of which he 
shall transmit to the speaker of the house of representatives of 
the next general assembly, by his senator or representative, who 
shall deliver the same to such speaker on or before the second day 
of the session, and the other certified statement shall be trans- 
mitted by mail to Indianapolis, directed to said speaker, and to 
the care of the secretary of state, by whom the same shall be de- 
livered to the speaker on or before the second day of the session. 

Courts have no jurisdiction of an action to enjoin the secretary of state 
from delivering to the speaker of the house of representatives the sealed re- 
turns, alleged to be wrongful and illegal, of an election for lieutenant-governor, 
■which are directed to the speaker, as required by law, in care of the secretary, 
and are to be delivered to him by the latter, 109 Ind. i. 

Sec. 4730. Pay of officers. 52. Each inspector, judge, and 
clerk of any election shall be allowed and paid two dollars for each 
day's service while attending such election and performing the 
duties of his office; and the same rate for one day's services, and 
mileage at the rate of five cents per mile, going and returning, shall 
be allowed and paid to each member of the board of canvassers. 



ARTICLE 2— SPECIAL ELECTIONS. 



SEC. 



4731. "When to be held. 4733. Notice by sheriff. 

4732. "When g-overnor to order. 4734. How conducted. 

[1881 S., p. 482. Approved March 11, 18S1, and in force September 19, 1881.] 

Sec. 4731. When to be held. 53. A special election shall be 
held in the following cases : 

First. Whenever a vacancy shall occur in the office of senator 
or representative during a session, or when the legislature will be 
in session after the occurrence of a vacancy and before a general 
election. 

Second. Whenever a vacancy shall occur in the office of repre- 
sentative in congress while in session, or when congress w411 be in 
session after such vacancy occurs and before a general election. 

TJiird. Whenever two or more persons receiving votes at any 
election shall have the highest and an equal number of votes for 
the same office. 

Foiinh. Whenever a vacancy occurs in any office required to 
be filled at a special election. 

Sec. 4732. When governor to order. 54. Special elections not 
otherwise provided for shall be ordered by the governor, who shall 
issue a writ or writs of election, directed to the sheriff or sheriffs 



727] TOWNSHIP ELECTIONS. [§§4733 — 473^ 

of the proper county or counties; and such writ shall specify the 
county, district, or circuit in which such election is to be held, the 
cause and object of such election, the name of the person whose 
office is vacant, and the day on which such election shall be held; 
which day shall be the same in case such election is held in a dis- 
trict or circuit formed of two or more counties. 

Sec. 4733. Notice by sheriff. 55. The sheriffs who receive such 
writs ordering a special election shall give the same notice thereof 
as is required of general elections : Provided, Such notice may be 
set up and published ten days only. 

Sec. 4734. How conducted. 56. - All special elections shall be 
conducted, returned, certified, and canvassed, and certificates and 
commissions shall issue, and shall in all respects be governed by 
the provisions of this law regulating general elections, so far as 
applicable. 

ARTICLE 3— TOWNSHIP ELECTIONS. 

SEC. SEC. 

473S' "When held. 4737* Certificates. 

4736. Canvass — Inspector's duties. 

[18S9 p. 425. Approved March 11, 1889, and in force May 10, 1889.] 

Sec. 4735. When held. 57. An election shall be held in each 
township in each county in this State, on the first Monday of 
April, 1 89 1, and every fourth year thereafter, for the purpose of 
electing justices of the peace, township trustees, assessors, con- 
stables, and such other officers of townships, as may be provided 
for by law; which elections shall be conducted by the officers [of] 
and governed by the provisions of the law with respect to general 
elections so far as apphcable. [El. Sup. § 1390.] 

The county reimburses the township for its expenses in conducting township 
elections, 107 Ind. 584. 

[1881 S., p. 482, Approved April 21, 1881, and in force September 19, 1881.] 

Sec. 4736. Canvass — Inspector's duties. 58. The board of judges 
shall count the votes given for each person for each office, and cer- 
tify the result, and the inspector shall file one of the poll-books 
and tally-sheets, with ballots on a string, in the clerk's office of the 
county, within ten days after such election. If two or more have 
the highest and an equal number of votes for the same office, such 
judges shall, when the result is certified, determine by lot the per- 
son entitled to the office ; and the next day, the inspectors shall 
make out and deliver to the person elected, when demanded, a 
certificate for each person elected to any office in said township, 
except justices of the peace: Provided, That, if there be.more than 
one precinct in said township, then the inspectors of the several 
precincts shall meet, on the day following the election, at the office 



§§ 4737. 4738] elections. [yzS 

of the township trustee, at as near ten o'clock a. m. as is practica- 
ble, and compare the poll-books and certificates thereto held by 
them, and having aggregated the vote of the township, declare and 
certify the result; and if two or more persons have the highest and 
an equal number of votes for the same office, they shall determine, 
by lot, which shall be declared elected, and give a certificate accord- 
ingly. 

1. This section is constitvitional, 27 N. E. Rep. 422 ; S. C. 128 Ind. 

2. The general assembly possesses the power to^compel the production of 
election papers under this section, 109 Ind. i, 7. 

[1889, p. 344. Approved March 9, 1889, and in force May 10, 1889.] 

Sec. 4737. Certificates. 59. Such certificate shall entitle the 
holder to qualify and enter upon the discharge of the duties of the 
office to which he is elected, at the expiration of ten days from the 
day of such election, except that of township trustee and towmship 
assessor, who shall enter upon the duties of their offices on the first 
Monday of August following such election, and also except that 
the certificates of election of justices of the peace shall be for- 
warded by the inspector aforesaid to the clerk of the circuit court, 
who shall certify the result for that office to the secretary of state. 
[El. Sup. § 1395.] 

1. Section 60 of this law refers exclusively to city and town elections, and is 
set out under " Cities and Towns," being § 3224. 

2. In computing ten days, the day of election is excluded. 



ARTICLE 4— RE-COUNTING. 

SEC. SEC. 

4738. ^Vhen candidate may have. 474i- Certificate of re-count. 

4739. Proceedings to obtain. 47'^2. Adjournments forbidden — Pay — Bal- 

4740. Order for re-counting- — How conducted. lots, how preserved. 

[1881 S., p. 482. Approved April 21, 1881, and in force September 19, 1881.] 

Sec. 4738. Wlien candidate may liave. 61. At any time within 
ten days after the Thursday next succeeding any election, any 
candidate for office at such election, desiring to contest the same, 
may petition, in writing, the circuit court, if in session, or the 
judge thereof in vacation, for a re-count of the ballots cast at such 
election, by three commissioners, appointed by the court or judge, 
two of whom shall be from different political parties: Provided, 
That such appointments shall be made from the political parties 
which cast the highest number of votes at the last preceding gen- 
eral election. 

As the ballots are now destroyed these sections are practically nullified. 
The only ballots that can be counted are those that the election board have 
declined to count or have counted over the protest of one of their number; and 
perhaps the court has the power to appoint commissioners to canvas these bal- 
lots where they have been preferred. Only those are preserved over which 
the board can not agree, concerning § 4709a, 



729] RE-COUNTING. [§§4739^4742 

Sec. 4739. Proceedings to obtain 62. Upon the petition of such 
candidate, duly verified, showing that he desires to contest such 
election, and honestly believes that there was a mistake or fraud 
committed in the official count, and that he desires a re-count of 
the ballots cast at said election for the office for which he v/as a 
candidate, and upon proof that he has served a written notice upon 
the opposing candidate of the time and place of such application, 
five days before the hearing, and upon his furnishing a written 
undertaking, with sufficient freehold surety, that he will pay all the 
costs of such re-count, the court or judge shall grant the prayer of 
said petition and order said re-count to be made. 

Sec. 4740. Order for re-counting — How conducted. 63. In ap- 
pointing such commissioners to make said re-count, the court shall 
fix the time within which the same shall commence, not exceed- 
ing twenty days thereafter, and the clerk of the circuit court shall 
act as the clerk of said commissioners. The order shall provide 
that each of the candidates may be present during said re-count; 
and two qualified voters of the county, selected by each of said 
candidates, may also be present, who may witness the re-count of 
the vote ; and such witnesses shall conduct themselves in a quiet 
and orderly manner, and shall not interrupt said commissioners 
while in the discharge of their duties. Such order shall be entered 
on the order-book of the circuit court. 

Sec. 4741. Certificate of re-count. 64. When said re-count is fin- 
ished, the commissioners, or a majority of them, shall make out a 
certificate, under their hands, stating the number of votes that 
each of said candidates has received for said office in each town- 
ship and precinct, and which of said candidates, as shown by the 
said re-count, received the highest number of votes, and what his 
majority or plurality was ; and said certificate shall be filed with 
the clerk of the circuit court and recorded in the order-book of 
said court. Such certificate, or the record thereof, may be used 
as evidence of the facts therein reci'ted upon the trial of any con- 
test of said election between said candidates. 

The certificate in a contest or proceeding by information is onlv frima 
facie evidence of the result of the election, loi Ind. 36. 

Sec. 4742. Adjournments forbidden — Pay — Ballots, how preserved. 

65. No adjournment shall be had until said re-count is finished 
and said certificate is made out and filed. Said commissioners 
shall each be allowed, and paid by said petitioner, at the rate of 
three dollars per day, each, for their services. Said clerk shall, 
as soon as such re count is completed, replace said ballots in the 
ballot-boxes, securely lock and seal them, and keep them as above 
provided. For his services in the matter of such re-count, said 
clerk shall receive from such petitioner the sum of five dollars. 



§§ 4743—474-6] elections. [730 

ARTICLE 5— CONTEST. 

SEC. ^^C- 

474:!. Who mav contest. 4756- Causes for contest, 

I744. Contest For state office. 4757- Election when not set aside. 

l~Tl Notice 475s. Contest lor local omces. 

I74S! Committee to try— Powers. 4759- Notice by auditor to clerk 

4747. Contestinij seat of legislator. 4760. Notice to county board and contestee. 

4748. Depositions. 4761 • Supcen as— Trial of contest. 
4749 
4750 
475 



Notice to contestee.' 4762. Appeals. 

Pov.-ers of justices. 4763- Duty of court on appeal. 

Vacancy 4764- A'oters compelled to testifj-. 



4,C2. Meeting of justices— Their duty. 4765. Fees and costs. 

A~-7 Clerk's^duty. 4766. Commissioner to take testimony'. 

4754! Duty of secretary of state. 4767- Contest for municipal offices, 



Depositions, ^vhen read. 476S. Appeal to supreme court. 



[1881 S., p. 4S2, Approved April 21,1881, and in force September 19, 1881,] 

Sec. 4743. "Who may contest. 66. The election of any person 
declared elected by popular vote to any office, whether state, 
county, township, or municipal, may be contested by any elector 
who was entitled to vote for such person. The person contesting 
such election shall be known as the contestor ; the person whose 
election is contested, as the contestee. 

A claimant to the office of lieutenant-governor can not maintain an inform- 
ation in the nature of quo xvarranto to settle the title to that office, as § 132, 
R. S. 1881, of the constitution, vests exclusive jurisdiction of such controversies 
in the general assembly, 109 Ind. 79. 

Sec. 4744. Contest for state office. 6^/. When such elector may 
choose to contest the election of any state officer, elective by the 
people, he shall, within twenty days after the first day of the next 
session of the general assembly thereafter, deliver to the presiding 
officer of the house of representatives specifications of the grounds 
of such contest ; which specification shall be verified by the 
affidavit of such electors. 

Sec. 4745. Notice. 68. As soon as such presiding officer re- 
ceives such specifications, he shall make out a notice of contest, 
which, together with a copy of the specifications, he shall cause 
to be directed and delivered to the person whose election is con- 
tested ; and shall immediately give notice to both houses that such 
specifications have been received. 

Sec. 4746. Committee to try — Powers. 69. Each house shall 
choose, by a viva voce vote, seven members of its own body ; and 
the members thus selected shall constitute a committee to try and 
determine such contested election ; and for that purpose shall hold 
their meeting publicly, at the capitol, at such time and place as 
they may designate, and may adjourn from day to day, or to a day 
certain, until such trial shall be determined. They shall have 
power to send for persons and papers and to take all necessary 
means to procure testimony, extending like privileges to the con- 
testor and the contestee; and shall report their judgment in the 
premises to both branches of the general assembly ; which report 



J 5 



:] CONTEST. [§§4747—4753 



shall be entered on the journals of the respective houses, and the 
judgment of such committee shall be conclusive. If such election 
be adjudged invalid, such office shall be vacant. 

Sec. 4747. Contesting seat of legislator. 70. Any such elector 
who may choose to contest the election of any person declared 
elected to a seat in the senate or house of representatives shall, 
within ten days after such election, file with the clerk of the circuit 
court of the county in which the alleged cause of contest originat- 
ed, a statement of the grounds of contest on which he relies, and 
that he was entitled to vote at such election, verified by his 
affidavit. 

Sec. 4748. Depositions. 71. When such statement shall be filed, 
such clerk shall issue a commission directed to two justices of the 
peace of his county, not of kin to the contestor nor to any person 
who was a candidate at such election for the office the election to 
which is contested, to meet at such time and place as shall be 
specified in such commission, not less than twenty nor m.ore than 
thirty days from the time of issuing the same, for the purpose of 
taking the depositions of witnesses. 

Sec. 4749. Notice to contestee. 72. Written notice of such con- 
test, specifying the time and place of taking depositions and before 
whom to be taken, and a copy of such statement, certified by such 
clerk, shall, within ten days after such statement shall have, been 
filed, be delivered to the contestee, or, if he can not be found, 
shall be left at his last and usual place of residence by the sheriff 
of the county, who shall return to such clerk a certified copy of 
such notice, with the manner and time of service indorsed thereon, 
for which he shall receive from the contestor the same fees allowed 
in writs of summons. 

Sec. 4750. Powers of justices. 73. Either of such justices shaU 
have power to issue subpoenas, to be served by the sheriff; and 
when met at the time and place appointed to take depositions, shall 
have the same power to issue attachments and assess fines against 
witnesses as is given to justices in the trial of suits instituted before 
them. 

Sec. 4751. Vacancy. 74. If. either of the justices first appointed 
becomes unable to proceed in such examination, such clerk shall 
fill the vacancy with any other justice of the county. 

Sec 4752. Meeting of justices — Their duty. 75. Such justices 
shall meet at the time and place appointed, take and certify such 
depositions as in other cases, and may adjourn from time to time, 
and when the same is closed, shall deliver the depositions, with 
the commission, to such clerk. 

Sec. 4753. Clerk's duty. ^6. Such clerk shall seal up the dep- 
ositions, original statement of the grounds of contest, the copy 



§§ 4754—4756] elections. [732 

of the notice served on the contestee, and the commission issued 
to such justices, indorse thereon the names of the contesting par- 
ties and the branch of the legislature before which such contest is 
to be tried, and transmit the same, by mail, to the secretary of 
state. 

Sec, 4754. Duty of secretary of state, j"]. The secretary of 
state; on or before the second day of the session of the general 
assembly held next thereafter, shall deliver such depositions to the 
presiding officer of the proper house, who shall immediately lay 
the same before such house. 

Sec. 4755. Depositions, when read. 78. At any time after no- 
tice of contest, and before final determination, either party may 
take depositions to be read on the trial, under the rules regulating 
the taking of depositions to be read in the circuit court ; and such 
depositions shall be sent, by mail, to the secretary of state, who 
shall deliver the same, unopened, to the presiding officer of the 
proper house. 

Sec. 4756. Causes for contest. 79. Any election, the contest of 
which is provided for in this act, may be contested for any of the 
following causes: 

First. For irregularity or malconduct of any member or officer 
of the proper board of judges or canvassers. 

Second. When the contestee was ineligible. 

Third. When the contestee, previous to such election, shall 
have been convicted of an infamous crime,- such conviction not 
having been reversed nor such person pardoned at the time of 
such election. 

Fourth. On account of illegal votes. 

1. A mistake in the cou?it of the votes, whether innocently or otherwise, is 
a good ground of contest ; and evidence thereof is admissible under an allega- 
tion that the contestor received a greater number of votes than his opponent, 
58 Ind. 303. 

2. The real question is, who received the highest number of legal votes; and 
irregularity or malconduct of a member of the board of judges or canvassers, 
which does not affect the number of votes, is not a ground of contest, 50 Ind. 
298. 

3. As to the sufficiency of a statement of the grounds of contest where 
illegal votes were cast, see 28 Ind. 131. It is not necessary that a list of ihe 
names of the illegal voters should be filed, 27 Ind. 191. 

4. A party to a contested election proceeding is entitled to show, by direct 
or indirect evidence, that there \\2iS fraud on the part of the election officers, 
resixlting in his injury, that votes cast were illegal, or that, by changing the bal- 
lots, or by wrongfully interfering with the election papers, a greater number of 
voters were credited to his opponent than he was entitled to ; and the right to 
this evidence is not affected by the fact that illegal votes were cast for such 
party, or that frauds were perpetrated in his interest, 113 Ind. 14S; 50 Ind. 29S. 

5. The fact that some one else is prosecuting a contest of an election for the 
same office does not prevent one who has received a certificate ofelection, and 
who has duly qualified, from taking possession of the office, 40 Ind. 469. 



733] CONTEST. [§§ 4757, 475 S 

Sec. 4757. Election, when not set aside. 8o. No irregularity or 
malconduct of any member or officer of a board of judges or can. 
vassers shall set aside the election of any person, unless such irreg- 
ularity or malconduct was such as to cause the contestee to be 
declared elected when he had not received the highest number of 
legal votes ; nor shall any election be set aside for illegal votes, 
unless the number thereof given to the contestee, if taken from 
him, v/ould reduce the number of his legal votes belov\^ the number 
of legal votes given to some other person for the same office. 

1. Where the statement alleged that the officers incorrectly certified to a 
larger number of votes for the contestee than the contestor, and the answer 
admitted the mistake, but averred that the contestor received more illegal votes 
than those incorrectly certified, and the contestor replied that as manj- illegal 
votes were cast for the contestee as the contestor, the statement and answer 
were both held good on demurrer, and the replv was not a departure, 50 Ind. 
29S. 

2. To a statement charging that illegal votes were cast for the contestee 
equal to his declared majority, it is a suflicient answer that illegal votes were 
given and counted for the contestor, and that the contestee received a majority 
of the legal votes cast, 48 Ind. 301. 

3. This section is applicable to city and town elections, § 4767, See 34 
Ind. 425. 

4. The provisions of this section announce a principle of law which pre- 
vails independent of them. Statutes regulating the mode of conducting elec- 
tions are directory, and any departure from the prescribed mode will not vitiate 
an election if the irregularity does not deprive any legal voter of his vote, or 
admit a disqualified voter to vote, or cast uncertainty on the result, and has not 
been occasioned by the agency of a party seeking to derive a benefit from it, 
34 Ind. 425. See § 4678, note 11. 

5. Where a change in the voting place was made only two days before the 
day of election, of which change no notice was given, but at a time when the 
board of commissioners were not restricted as to the time of making such 
change, and there was no charge of fraud, nor that any legal voter w^as pre- 
vented from voting, nor that any illegal voter was permitted to vote, the elec- 
tion was held valid, 34 Ind. 185. See § 4687, notes. 

6. The fact that two inspectors in a township made no returns was held not 
to vitiate an election, it appearing that the whole number of votes cast in their 
precincts, if all cast against the proposition that was carried would not have 
changed the result, 34 Ind. 185. Mere informalities in the returns does not de- 
feat the election, 89 Ind. 540. 

Sec. 4758. Contest for local offices. 8i. All contests for county 
and township offices shall be tried in the proper county; and all 
contests for district and circuit offices, not otherwise provided in 
this act, shall be tried in the county giving the largest vote for 
such office at such election ; and w^henever any elector shall choose 
to contest such election, he shall file with the auditor of the proper 
county, within ten days after such person has been declared elected, 
a written statement specifying the grounds of contest, verified by 
the affidavit of such elector. 

1. If the affidavit be made by any person other than the contestor, the pro- 
ceeding should be dismissed, 46 Ind, 122; 8 B. 310. The statement may be s-.vom 
to before the auditor., 42 Ind. 320. See 8 B. 310. 

2. The affidavit is not bad for using the words " as he is informed and verilj'- 
believes," 27 Ind. 191; Gov., 31 id. 151. 



§§ 4759' 47^0] ELECTIONS. [734 

3. The contestee need not swear to the grounds on which he resists the 
contest, 48 Ind. 301. 

4. The right to an office may also be contested by an information^ under 
sections 1131 and 1132, R. S. 18S1, 65 Ind. 393; 34 Ind. 425; "81 Ind. 558; even 
when proceedings at the time are pending to contest the election, 107 Ind. 374. 

5. Injiinctio7i is not the proper remedy for obtaining possession of an office 
to which a person has been elected, and from which he is illegally excluded by 
a usurper, 13 Ind. 548. Mandavnis is not available to settle the title to an office 
as between adverse claimants ; but where a person holds a prima facie and un- 
contested title to the office, or where his title has been adjudicated and finally 
established by a competent tribunal, a writ of mandate may be issued to put 
him in possession. Judgment entered upon an illegal agreement concerning 
who shall hold the office is binding as between the parties until reversed, 115 
Ind. 245. 

6. If the contest is on the ground that persons not qualified voted, a list of 
the voters alleged to be unqualified need not be set out, 27 Ind. 191. 

7. An admission that a list of those who voted, filed before the board of 
county commissioners, were not qualified to vote, made " for the uses and pur- 
poses of this trial," is not admissible in evidence on appeal; because it was 
limited, by its terms, to a trial before the commissioners, 27 Ind. 191. 

8. Fratids in an election may be established by circumstantial as well as 
by direct evidence, 27 Ind. 191. 

9. A demurer assigning a want of sufficient facts as causes stated for con- 
testing an election presents no question as to the sufficiency of the affidavit, 42 
Ind. 320. 

10. The power of the board of county commissioners to hear and determine 
upon the sufficiency of the afftdavit filed to contest the election constitutes 
jurisdiction; and the decision, if wrong, is simply erroneous and not void, 42 
Ind. 320. 

11. A refusal to dismiss the action on grounds specially pointed out is not 
erroneous, although other valid grounds for a dismissal clearly existed, 42 Ind. 320. 

12. When term of office begins in case of contest, see § 4721, note ■t^. 

13. The statement of the grounds of contest must he fled by the contestor 
-vithin ten days after he has been declared elected by the board of canvassers; 
and it must appear affirmatively that such was the case on appeal in the circuit 
and supreme courts, or the case will be dismissed, 87 Ind. 540. 

Sec. 4759. Hotiee by auditor to clerk. 82. When such statement 
is filed with the auditor of the proper county, he shall immediately 
give notice, in writing, to the clerk of the circuit court, that the 
election to such office is contested ; and when the office of county 
auditor is contested, such statement shall be filed with the clerk, 
who shall do the duties otherwise required by this act of the aud- 
itor. The filing of such statement shall be notice to him. 

Sec. 4760. Notice to county board and contestee. 83. When such 
statement is filed with the auditor, he shall issue a notice to the 
board of county commissioners to meet at the court-house at a 
designated time, not less than ten nor more than twenty days 
thereafter, to try such contested election, and shall issue a notice 
to the contestee to appear at the time and place specified in the 
notice to the commissioners ; which, with a copy of such state- 
ment, shall be delivered to the sheriff of the county, who shall, 
within five days thereafter, serve the same on the contestee, by 
delivering to him a copy of such notice and statement or leaving a 
copy thereof at his last usual place of residence. 



735] CONTEST. [§§4761—4763 

1. The notice is good -when it sufficiently informs the contestee that a con- 
test has been instituted before the proper county board. The provisions as to 
time and manner of service are merely directory, 58 Ind. 302 (overruling 37 
Ind. 19S). 

2. The board in tliese trials is governed by the rules of law obtaining in the 
circuit courts, 58 Ind. 302. 

3. Under §§4760,4761, it was the intention of the legislature that the entire 
time given to the consideration of a contested election case by the board of 
commissioners should be twenty days altogether, and when before the expira- 
tion of such period a contestee without assigning any reason procures a contin- 
uation to a time beyond such period the board on the latter date had no juris- 
diction and the contestee thereby discontinues his contest, 27 N.E.Rep. 495. 

Sec. 4761. SubptBnas — -Trial of contest. 84. The auditor, at the 
request of either party, shall issue subpoenas, which shall be served 
by the sheriff. Such board of commissioners shall try and deter- 
mine such contest; and shall have power to compel the attendance 
of witnesses, to swear and examine the same, to punish contempts 
as other courts, to adjourn or continue the trial from time to time, 
not exceeding twenty days altogether; to make the necessary 
orders for the payment of costs, and to coerce the payment of the 
same, and shall be governed in such trial by the rules of law ob- 
taining in circuit courts. And if it be proved that any other per- 
son than the contestee has the highest number of legal votes, such 
board shall declare such person elected, and certify the same to 
the proper officers. 

Sec. 4762. Appeals. 85. Appeals may be taken herein, as from 
other decisions of such board : Provided, That the same be taken 
within ten days. 

1. An appeal can not be dismissed for delay of the auditor in filing the 
transcript and papers upon an appeal, 33 Ind. 197. 

2. In contesting an election for the relocation of a county seat, it has been 
held that no appeal lies from the decision of the board of commissioners; 
because it is a special proceeding, and no provision has been made for an 
appeal. See 39 Ind. 536; 40 Ind. 61, and 56 Ind. 330. See, however, the cases 
cited under § 3197, on the question of appeal. 

3. The fact that the appeal bond is made payable to the State is no ground 
for a dismissal of the appeal, 62 Ind. 60. 

Sec. 4763. Buty of court on appeal. 86. If upon such appeal 
the circuit court confirm such election, a certificate thereof shal- 
issue; if such election be annulled, and no other person declared 
elected to the same office, it shall be declared vacant. 

1. On appeal the circuit court can not reimijid the cause to the commis- 
sioners for trial, but must determine it as an original action, 33 Ind. 505. 

2. Kjury trial can not be demanded, 62 Ind. 60; 17 Ind. 254; 113 Ind. 14S. 

3. A motion made before the board of commissioners to dismiss may be 
renev,-ed in the circuit court; but a motion to dismiss assigning another cause 
of dismissal can not be made on appeal. If a special appearance has been en- 
tered before the board, and a motion made to dismiss, which is unsuccessful, a 
full appearance ma}' then be entered; and on appeal a special appearance be 
a.gain entered, and the original motion again urged, for a dismissal, 5S Ind. 302. 



§§ 47^4— 47^7] ELECTIONS. [736 

Sec. 4764. Voters compelled to testify. ^J. Any witness who 
voted at such election, when called to testify in any such case, 
shall be required to answer touching his quahfications ; and if he 
was not a qualified elector he shall be required to answer for whom 
he did vote, and such admissions shall not be used against him in 
any prosecution for illegal voting. 

1. If a voter is called as a witness he may identify the ballot he cast if he 
can; but if he can not identify it, or it can not be found, he may then testify 
for whom he voted, 27 Ind. 191; 61 Ind. 392; loi Ind. 36; 113 Ind. 148. But 
under the present law all ballots are destroyed, and such is the presumption, 
unless in the case of a ballot not counted or protested. The production of the 
ballot can not, therefore be demanded, unless it is shown or admitted that the 
witness' ballot is in existence, and in legal custody. 

2. ^7iare, IS this section valid ? See 113 Ind. 148. A vv^itness, however, can 
not be compelled to tell for whom he voted, unless the vote was illegal. The 
presumptio7i is that his vote was legal, and before he can be required to tell for 
whom he voted it must be shown, either by his own or other testimony, that he 
was an illegal voter, 113 Ind. 148. 

Sec. 4765. Fees and costs. 88. The sheriff, auditor, clerk, and 
justices of the peace, for services rendered by them in case of 
contested elections, shall receive from the party at whose instance 
such services are performed the fees usually allowed for similar 
services in other cases ; which fees shall be taxed as costs against 
the losing party, and collected as other costs are taxed and col- 
lected. 

I. If the contest is discontinued the costs must be taxed to the contestor, 27 
N. E. Rep. 495. 

Sec. 4766. Commissioner to take testimony. 89. The court try- 
ing the cause, at the request of the contestor or contestee, in writ- 
ing, or upon the application of either party, supported by affidavit 
showing that a saving of expense to the parties, the convenience 
of the witnesses, and the ends of justice will be promoted thereby, 
may appoint a commissioner to take the testimony of witnesses, 
in writing, at any time before the final hearing, and shall provide, 
in the order of appointment, that each party shall give reasonable 
notice to the other of the time and place of such taking. Such 
commissioner shall have power to subpoena and compel the attend- 
ance of witnesses residing in the county; and it shall be his duty 
to take down, in writing, all the testimony offered by the parties, 
and to note all objections to the testimony ; and he shall report 
the same to the court trying the cause within the time limited by 
the order appointing him. 

Sec. 4767. Contest for municipal offices. 90. All contests for 
municipal offices shall be tried before the circuit court of the 
proper county in the manner provided by law for the contest of 
county and township offices. The clerk of the circuit court shall 
be the person with whom the notice of contest shall be filed, and 
he shall perform all the duties required to be performed by him 



737] PURITY IN ELECTIONS. [§§ 4768, 4768^ 

and the auditor in other cases, and the contest shall be set down 
for trial at the next term of such circuit court. 

Formerly the only way in which a municipal election could be contested 
was by information in the circuit or common pleas court, 34 Ind. 425. 

Sec. 4768. Appeal to supreme court. 91. In all cases of con- 
tested elections where an appeal has been taken from the board o( 
county commissioners to the circuit court, either party feeling 
aggrieved by the judgment of said court may appeal therefrom to 
the supreme court, as in other civil cases. The appeal-bond in 
such cases shall be in a penalty sufficient to secure any damage 
which may accrue by a stay of proceedings upon the judgment. 
And whenever, by reason of such appeal, a party may be ex- 
cluded from the office to which he may be entitled, pending such 
appeal, the principal and sureties in said bond shall be liable there- 
on for the amount of the emoluments of the office to the party 
deprived thereof. 

It is only by virtue of this section that an appeal can betaken, the provisions 
of the civil code not authorizing it, 9 Ind. 475. 



ARTICLE 5^1— PURITY IN ELECTIONS. 



476Sa. 


Unlawful to purchase votes. 


4768Z. 


Continuance— Bond. 


4768^. 


Liability. 


47687. 


Transcript— Lien. 


476S.. 


Complaint — Arrest — Bail — Habeas 


4768^. 


Lien. 




corpus. 


4768/. 


Attorney fees— Amount of judgment- 


4768^. 


When warrant issued. 




Stay. 


4768^. 


Rules of evidence. 


4768W. 


Execution. 


476S/. 


Bond— Transcript— Judgment. 


4768«. 


Contracts void. 




Discharge from custody. 
Trial. 


47680. 


Laws repealed. 



[1889, p. 360. Approved and in force March 9, 1889.] 

Sec. 4768^. UnlawM to purchase votes, i. Whoever hires or 
buys, directly or indirectly or handles any money or other means 
knowing the same is to be used to induce, hire or buy any person 
to vote or refrain from voting any ticket or for any candidate for 
any office at any election held pursuant to law, or at any primary 
election or convention of any political party, then the pers.on so 
offending in any one of the foregoing particulars, and all other per- 
sons aiding, abetting, counseling, encouraging or advising such 
acts, shall thereby become liable jointly and severally to the per- 
son hired, bought, or induced to vote or refrain from voting by 
the means above enumerated, in the sum of three hundred dollars, 
and reasonable attorney's fees for collecting the same in an action 
to be "brought as hereinafter provided, on the relation of the voter 
in whose favor the liability is created by this section. [El. Sup, 
§ 1396.] 

The provisions of this article are applicable to cities and towns. 
47 



§§ 47^^^ \']6Zf'\ ELKCTIONS. [738 

Sec. 4768^. Liability. 2. When any liability accrues against any 
person in favor of another under the provisions of the foregoing 
section, the latter may bring an action therefor in the name of the 
State of Indiana on his own relation, either in the circuit or supe- 
rior court or before any justice of the peace in the county where 
the defendant or one of the defendants reside, on a complaint in 
writing under oath. [El. Sup. § 1397.] 

Sec. 4768^. Complaint — Arrest — Bail — Habeas corpus. 3. When 
the complaint is filed in the circuit or superior court the clerk shall 
issue a warrant to the sheriff of any county, or several warrants to 
sheriffs of different counties where the defendant or different de- 
fendants may be, commanding such sheriff to arrest the defendant 
or defendants. The person arrested in vacation may be admitted 
to bail by the sheriff, by entering into a bond payable to the State 
of Indiana, with at least two good freehold sureties resident in the 
county where the action is brought, to the approval of the sheriff, 
in a penalty of one thousand dollars conditioned that such defend- 
ant will appear on the first day of the next term of said court, and 
continually until said cause is disposed of, and abide the order of 
the court; and in default of such bail the sheriff shall commit him 
to the jail of the county where the action is pending. The judge 
of the circuit or superior court may discharge such defendant on a 
writ of habeas corpus if on the hearing of such writ no cause for 
his imprisonment appears. [El. Sup. § 1398.] 

Sec. 4768</. When warrant issued. 4. When the complaint is 
filed before a justice of the peace he shall issue a warrant to the 
proper constable, commanding him to arrest the defendant and 
bring him forthwith before him for examination. [El. Sup. § 1399.] 

Sec. 4768^. Rules of evidence. 5. Upon the arrest of the defend- 
ant by the constable, or the return of the warrant that he can not 
be found, such justice shall proceed to hear and determine said 
complaint. The rules of evidence both before the justice and in 
the circuit and superior courts shall be the same as in civil cases. 
[El. Sup. § 1400.] 

Sec. 4768/ Bond — Transcript — Judgment. 6. If the justice on 
hearing adjudges that there is probable cause for the prosecu- 
tion, he shall, if such defendant is in custody, require him to 
enter into a bond in the penal sum of one thousand dollars, with 
at least two good freehold sureties resident in the county, payable 
to the State of Indiana, and conditioned that he will appear on 
the first day of the next term of the court wherein the prosecu- 
tion is pending to answer such complaint, and not depart without 
leave until the final disposition of said prosecution, and abide the 
judgment and orders of such court, or, failing therein, he will pay 
such sums of money and to such persons as may be adjudged by 






739j ^ PURITY IN ELECTIONS. [§§ 4768^ — 4768/' 

such court, and shall transmit such bond, together with a certified 
transcript of his proceedings and the other papers in the cause to 
the clerk of the circuit or superior court of the proper county. 
And if such defendant shall fail to give such bond such justice 
shall commit him to jail until discharged by law. Such bond, or 
any bond given by said defendant on any continuance or arrest, 
may be put in suit for a breach thereof by the relator in the name 
of the State of Indiana for his benefit, and the measure of re- 
covery on said bond shall be the amount of any judgment the 
relator recovered in the original prosecution, and all costs therein, 
or, in case the original prosecution has not yet been tried, then 
the amount the relator can show he would have been entitled to 
recover, and all costs therein and all costs in the suit on the bond. 
[El. Sup. § 1401.] 

Sec. 4768^. Discharge from custody. 7. Any person committed 
to jail for failure to give bond may be discharged from custody by 
filing, at any time after such commitment, such bond with the 
clerk, and with his approval ; and a certificate thereof by the clerk 
to the sheriff or jailer shall be sufficient to authorize him to dis- 
charge said defendant from custody. [El. Sup. § 1402.] 

Sec. 4768//. Trial. 8. The trial and continuance of such pros- 
ecution, both before the justice and the circuit or superior court, 
shall, in all respects herein not otherwise provided, be governed 
by the law regulating civil suits, except that in trials before jus- 
tices no jury shall be allowed. [El. Sup. § 1403.] 

Sec. 4768/'. Continuance — Bond. 9. A continuance for cause may 
be granted to either party both in the circuit or superior courts, 
and before the justice, and upon the justice granting such contin- 
uance to the defendant a like bond shall be required of him as is 
required in the sixth section for his appearance before the justice 
instead of the circuit or superior court on the day to which the 
cause is continued, or commit him to jail for failure to give such 
bond ; and such defendant may be discharged from custody in the 
same manner as in the seventh section provided. [El. Sup. § 
1404.] 

Sec. 4768/*. Transcript. 10. If the defendant shall not have 
been arrested, or has escaped after arrest, such trial shall proceed 
in his absence; and if it be adjudged that there is probable cause 
for such prosecution the justice shall transmit the papers and a 
transcript of such judgment and proceedings without delay to the 
clerk of the circuit or superior court of the proper county, who 
shall file and docket the same for trial ; and such cause shall be 
heard and determined whether the defendant appear or not the 
same as if he Avere present. When no arrest has been made no- 
tice by publication in a newspaper may be given the defendant as 



§§ 47^8^ — 47^8^] ELECTIONS. [740 

in other civil cases in the circuit or superior court. [El. Sup, § 

1405.] 

Sec. 4768^. Lien. 11. The fihng of such transcript as in sec- 
tions six and nine provided, and the fiHng the complaint with the 
clerk as in section three in this act provided, shall operate from 
the time of such filing as a lien upon the real estate of such de- 
fendant in the county to the extent of the judgment, which may 
afterward be rendered against him in such prosecution ; and such 
judgment shall have the same effect and lien as if rendered at 
the time of such filing ; and such lien shall be declared in such 
judgment. [El. Sup. § 1406.] 

Sec. 4768/. Attorney fees — Amount of judgment — Stay. 12. If 
the finding of the circuit or superior court of the jury trying the 
cause is for the defendant he shall recover a reasonable attorney's 
fee, costs against the relator, and be discharged ; if the finding is 
for the plaintiff the State shall recover judgment against the de- 
fendant in the sum of three hundred dollars for the use and benefit 
of the relator, a reasonable fee for his attorney in said prosecution, 
and all costs; and the court shall require of such defendant, if he 
be in custody, to replevy such judgment by good freehold surety, 
the length of stay to be six months from the date of the judgment, 
or in default thereof, shall commit such defendant to jail to remain 
until discharged by law. [El. Sup. § 1407.] 

Sec. 4768?;^ Execution. 13. Execution may issue on such judg- 
ments Avhenever any amount remains unpaid on the same, and 
shall be executed without relief from valuation and appraisement 
laws. [El. Sup. § 1408.] 

Sec. 4768;^. Contracts void. 14. Any and all contracts and 
agreements made for the purpose of evading the provisions of this 
act shall be absolutely void. [El. Sup. § 1409.] 

Sec. 4768^. Laws repealed. 15. All of sections one, two, three 
and five of an act entitled "An act to protect the ballot-box, to 
procure fair elections, to prevent the purchase or sale of votes, to 
provide means of proving such offenses, prescribing the punishment 
therefor," and repealing sections two hundred and sixty-eight and 
two hundred and sixty-nine of *'An act concerning public offenses 
and their punishment," approved April 14, 1881, being sections 
2184 and 2185 of the Revised Statutes of 1881, approved March 
18, 1885, except so much thereof as makes the mere offer to hire 
or buy any person to vote or refrain from voting a criminal offense ; 
and all laws and parts of laws in conflict with the provisions of this 
act are hereby repealed. [El. Sup. § 1410.] 



74l] BRIBERY. [§§ 4768/, 4768^ 

ARTICLE 5^— BRIBERY AT ELECTIONS. 

SEC. SEC. 

47(5$/". Useofmone}- by candidate. 4768/. Challenges. 

476S5'. Unlawful to loan or give money. 4768?^. False Affidavit, 

476S/-. Hiring voters — Penally. 476Sz'. Laws repealed. 

476&S. Inducing voters not to vote — Penalty. 476SW. Ballot-box breaking — Penalty. 

[1S89, p. 267. Approved March 9, 1S89, and in force May 10, 1889.] 

Sec. 4768/. Use of money by candidates, i. Any person being 
a candidate for nomination to any office of profit or trust under the 
constitution or laws of this State, or of the United States, before 
any convention held by any political party, or at any primary 
election, who loans, pays or gives, or promises to loan, pay or give, 
any money or other thing of value to any delegate or elector, or 
any other person, for the purpose of securing the vote or influence 
of such delegate, elector or person for his nomination, and who- 
ever hires or otherwise employs for consideration any person to 
work for the nomination of any person to any office, or to work for 
the selection of any delegate to be chosen at any party convention 
or primary election, shall, upon conviction thereof, be fined in any 
sum not more than five hundred dollars, and disfranchised and 
rendered incapable of holding any office of profit or trust within this 
State for any determinate period, and if nominated shall be ineligi- 
ble to hold such office. [El. Sup. § 319.] 

The provisions of this article are applicable to cities and towns. 

Sec. 4768^. Unlawful to loan or g^ive money. 2. Whoever, being 
a candidate for any office, loans or gives, directly or indirectly, or 
offers or promises to loan or give any money or other thing of 
value to any elector for the purpose of influencing or retaining the 
vote of such elector, or to induce such elector to work or labor for 
the election of such candidate, or to refrain from working or labor- 
ing for the election of any other candidate, or to any person, to 
secure or to retain the influence or vote of such elector in his be- 
half as such candidate, or to be used by such person in anyway to 
influence the vote of any elector, or of electors generally, for him- 
self or any candidate or ticket, and whoever hires or otherwise 
employs for consideration any person to work at the polls on elec- 
tion day for the election of any candidate to be voted for at such 
election, shall be fined in any sum not more than one thousand 
nor less than three hundred dollars, and shall be disfranchised and 
rendered incapable of holding any office of profit or trust \\'ithiii 
this State for any determinate period, and a violation of any pro- 
vision of this section by any person elected to such office shall 
render his election void, and if he has taken the office, upon con- 
viction shall operate as a vacation of the same. [El. Sup. § 3-0.] 

See § 4702, note 5. 



§§ 4768r — 4y6St] elections. [742 

Sec. 4768?". Hiring^ voters — Penalty. 3. That any person who 
shall give or offer to give, directly or indirectly, any money, 
property or other thing of value, to any elector to influence his 
vote at any regular election held in this State pursuant to law ; or 
who shall, at any such election, solicit, furnish or receive any 
money or other means for such purpose, or who shall aid, advise, 
counsel or suggest to any person, or to persons generally, to use 
or procure any money or other means to be used to induce, hire, 
or buy any person or persons to vote or refrain from voting for 
any candidate or candidates, or to remain away from the polls at 
any election, whether or not any such person shall act or attempt 
to act upon any such counsel, advice or suggestion, shall be guilty 
of a misdemeanor, and upon conviction thereof shall be fined in 
any sum not less than twenty-five dollars and not more than one 
hundred dollars, and imprisoned in the county jail not less than 
ten days nor more than six months, and disfranchised and ren- 
dered incapable of holding any office of trust or profit for any 
determinate period not less than ten years, or imprisoned in the 
State's prison at hard labor not less than one nor more than five 
years, and disfranchised and rendered incapable of holding any 
office of profit or trust for the period aforesaid. [El. Sup. § 321.] 

Sec. 47685. Inducing voters to not vote — Penalty. 4. That any 
person who shall, directly or indirectly, give, offer or promise to 
give to any elector any money, property or other thing of value 
for the purpose of preventmg, influencing, inducing or procuring 
such elector to refrain from voting or to remain away from the 
polls at any election held under the laws of this State, shall be 
guilty of a misdemeanor, and upon conviction thereof shall be 
fined in any sum not less than twenty-five dollars or more than five 
hundred dollars, and disfranchised and rendered incapable of hold- 
ing any office of trust or profit for any determinate period not less 
than ten years, to which may be added imprisonment in the county 
jail for any period not to exceed six months. [El. Sup. § 322.] 

Sec. 4768/. Challenges. 5. At any election held under and pur- 
suant to any law of this State, it shall be a ground of challenge 
that any person offering to vote has used or attempted to use 
money or other means to buy, hire or induce any elector to vote 
or refrain from voting for any candidate or candidates, or has 
advised, counseled or suggested bribery of any elector or electors 
at any such election, whether the same has been acted on or not ; 
•or has sold or offered to sell his vote for any candidate or candi- 
dates, at any such election. And when so challenged such elector 
shall not be permitted to vote until he has taken and subscribed 
the follov/ing : 
State of Indiana, 1 
County, j 

I, , do solemnly swear (or affirm) that I have not 



743] BRIBERY. [§g 4768?/: — 4768ze/ 

used or attempted to use any money or other means to buy, hire 
or induce any person or persons to vote or refrain from voting, or 
to remain away from the polls at this election; and that I have not 
counseled, advised, suggested or procured any person or persons 
to bribe any elector or electors to vote for any candidate or candi- 
dates, or to refrain from voting, or to remain away from the polls 
at this election, and that I have not sold or offered to sell my vote, 
either directly or indirectly, at this election. 

Subscribed and sworn to before me this day of 

. . . . , 18 . . 



[El. Sup. § 323.] 

See § 4702, for challenges in general. 

Sec. 4768?a False affidavit. 6. Whoever shall willfully or know- 
ingly make a false affidavit under this act shall be guilty of per- 
jury and punished accordingly. All affidavits made under the 
preceding sections shall be filed with the board of election and 
preserved by such board in the manner as other similar affidavits 
and papers are preserved. [El. Sup. g 324.] 

Sec. 4768z/. Laws repealed. 7. Sections one, two, three and 
five of an act entitled *'An act to protect the baUot-box, to pro- 
cure fair elections, to prevent the purchase or sale of votes, to 
provide means of proving such offenses, prescribing the punish- 
ment therefor, and repealing sections two hundred and sixty-eight 
and two hundred and sixty-nine of an act concerning public 
offenses and their punishment, approved April 14, 188 1, being 
sections 2184 and 2185 of the Revised Statutes of 188 1," approved 
March 17, 1885, and all laws and parts of laws in conflict with the 
provisions of this act are hereby repealed. [El. Sup. § 325.] 

Sec. 4768w. Ballot-box breaking — Penalty. 8. Any person not 
duly authorized by law who shall, during the progress of any elec- 
tion in this State, or after the closing of the polls and before the 
ballots are counted and result ascertained, or within six months 
thereafter, break open or violate the seals or locks of any ballot- 
box, paper envelope or bag in which ballots have been deposited 
at or after such election, or who shall obtain possession of such 
ballot-box, paper envelope or bag containing such ballots, and 
cancel, withhold or destroy the same, or who shall fraudulently or 
forcibly add to or diminish the number of ballots legally deposited 
therein, or who shall fraudulently make any erasure or alteration 
of any kind upon any tally-sheet, poll-book, list of voters or elec- 
tion return deposited therein, shall be fined in any sum not more 
than one thousand nor less than five hundred dollars, and im- 
prisoned in the state prison not more than ten nor less than two 
years, and disfranchised and rendered incapable of holding any 
office of profit or trust in this State for any determinate period. 
[El. Sup. § 326.] 



g§ 4/68;^ — 4y68ad] elections. [744 



ARTICLE re— CRIMES AGAINST PURITY OF ELECTIONS. 

SEC. SEC. 

4768;*?. Illeo-al voter, 476S//. Officer openins: or marking- ticket. 

476Sy. Voting in wrong precinct. 4768/7- Deceiving illiterate voter. 

476SZ. Non-resident voting. ^'jGSkk. Defrauding voter. 

4768«a. Importing voters. 4768'//. Using violence, threats, or restraint. 

^■j6Sbb. Voting more than once. 476S;«;«. Seizing ballot-box. 

^■j6Scc. Hiring men to vote or refrain, 4768;^^. Destroying ballot-box or ballots. 

4768t/rf. Selling vote. . 476800. Inducing voter to re-sign petition. 

476S6'£'. Fraud bv officer. 4768//. Selling signature to petition, 

4768/7. Altering returns. • 4768^3'. Fraud at special election. 

4768^cr. Refusing to receive vote. 4768rr. Buying vote at special election. 

4768'M. Officer persuading voter. 476S55. Bribing to procure election. 

[1881 S., p. 174. Approved and in force September 19, iSSi.] 

Sec. 4768;r. Illegal voter. 263. Whoever, not having the legal 
qualifications of a voter at any election authorized by law to be 
held in this State for any officer whatever, votes or offers to vote 
at such election, shall be fined not more than five hundred dollars 
nor less than ten dollars, imprisoned in the county jail not more 
than one year nor less than one month, and disfranchised and ren- 
dered incapable of holding any office of trust or profit for any 
determinate period. [R. S. 1881, § 2179.] 

1. As to the indictment, see 35 Ind. 485. 

2. As to the evidence, see 7 Blackf. 607; 32 Ind. 11 1, 52 id. 361. 

Sec. 47687. Voting in wrong precinct. 264. Whoever knowingly 
votes or offers to vote in any precinct or ward except the one in 
which he resides, shall be fined not more than five hundred dollars 
r.or less than ten dollars, imprisoned in the county jail not more 
than one year nor less than one month, and disfranchised and ren- 
dered incapable of holding any office of trust or profit for any 
determinate period. [R. S. 1881, § 2180.] 

Sec. 4768^. Non-resident voting. 265. Whoever passes from any 
other State into this State, and votes or attempts to vote at any 
voting precinct or ward of this State, not being at the time a dona 
fide resident of such voting precinct or ward, shall be fined not 
more than one thousand dollars nor less than fifty dollars, impris- 
oned in the state prison not more than five years nor less than one 
year, and disfranchised and rendered incapable of holding any 
office of trust or profit for any determinate period. [R. S. 188 1, 
§ 2181.] 

Sec. 4768(^^, Importing voters. 266. Whoever hires or solicits 
any person to come from any State into this State for the purpose 
of voting at any election therein, or to pass from any county to 
another county, or from any township into another township, or 
from any voting precinct or ward into another voting precinct or 
ward of the State, for the purpose of voting therein at any election 
held therein (such person, so solicited, not being a legal voter in 
such county, township, precinct, or ward), shall be fined not more 



745] ELECTION CRIMES. [§§ 4y6^bb — 4768^^ 

than one thousand dollars nor less than fifty dollars, imprisoned 
in the state prison not more than five years nor less than one year, 
and disfranchised and rendered incapable of holdinj^ any office of 
trustor profit for any determinate period. [R. S. 1881, § 2182.] 

Sec. 4768^^. Voting more than once. 267. Whoever votes more 
than once at any election in this State, either at the same precinct 
or ward or at different precincts or wards, shall be fined not more 
than one thousand dollars nor less than fifty dollars, imprisoned 
in the state prison not more than five years nor less than one year, 
and disfranchised and rendered incapable of holding any office of 
trust or profit for any determinate period. [R. S. 1881, §2183.] 

What is a sufficient indictment, 116 Ind. 45. 

Sec. 4768<;<:. Hiring men to vote or refrain, 268. Whoever hires, 
buys, or offers to hire or buy, or furnishes any money or other 
means to be used, or directs or permits his money or other means 
to be used, to induce, hire, or buy any person to vote or refrain 
from voting for any candidate for any office ; or whoever attempts 
to induce any person to vote or to refrain from voting for any can- 
didate for any office, by offering such person any reward or favor, 
— ^shall be fined not more than one thousand dollars nor less than 
twenty dollars, imprisoned in the state prison not more than five 
years nor less than one year, and disfranchised and rendered in- 
capable of holding any office of trust or profit for any determinate 
period. [R. S. 1881, § 2184.] 

For construction, see 60 Ind. 424. Repealed, §§ 47680 to 4768t\ 

Sec. 4768^*^. Selling vote. 269. Whoever sells, barters, or offers 
to sell or barter his vote for any candidate for any office, either 
for any money or property or thing of value or for any promise or 
favor or hope of reward, given or offered by any candidate or by 
any other person or persons, shall be fined not more than one 
thousand dollars nor less than fifty dollars, imprisoned in the state 
prison not more than five years nor less than one year, and dis- 
franchised and rendered incapable of holding any office of trust or 
profit for any determinate period. [R. S. 1881, §2185,] 

Repealed, §§ 47680 to 4768^. 

Sec. ^76See. Fraud by officer. 270. Whoever, being a township 
trustee, inspector, judge of election, or clerk of election, takes out 
of the ballot-box'any ballot legally deposited therein, for the pur- 
pose of destroying the same or substituting another in its place, 
or after the same has been legally taken out, intentionally destroys 
or misplaces the same with the intent to substitute another ballot 
therefor, or with the intent to prevent the same from being counted 
at such election ; or knowingly enters upon the poll-books the 
name of any person who has not legally voted at such election ; 
or intentionally tallies any vote to any candidate not voted for by 



§§ ^'j6'^ff—A,j6%ii'\ ELECTIONS. [746 

such ballot; or permits any one of these acts to be done, — shall be 
fined not more than one thousand dollars nor less than fifty dollars, 
imprisoned in the state prison not more than five years nor less 
than one year, and disfranchised and rendered incapable of hold- 
ing any office of trust or profit for any -determinate period. [R. S. 
1881, § 2186.] 

Sec. 4768//". Altering returns. 271. Any township trustee, 
inspector, or any person acting for or on behalf of any trustee or 
inspector v/hile forming a board of canvassers or before the can- 
vassing of any board of canvassers or after the adjournment of any 
board of canvassers, who shall, with intent to cheat and defraud, 
alter any election return as made by the election board of any 
voting precinct, either by increasing the vote of any candidate or 
reducing the same; or shall intentionally destroy, misplace, or lose 
any poll-book or tally-sheet; or any clerk of court, who shall, with 
intent to cheat and defraud, change or alter in any way the vote 
of any candidate as returned by the board of canvassers ; or any 
such trustee, inspector, clerk, or deputy clerk, or other person 
acting for such persons, who shall consent to the same being done, 
or who shall permit the same to be done, — shall be fined not more 
than one thousand dollars nor less than fifty dollars, imprisoned in 
the state prison not more than five years nor less than one year, 
and disfranchised and rendered incapable of holding any office of 
trust or profit for any determinate period. [R. S. 188 1, § 2187.] 

Sec. 4768^^. Eefusing to receive vote. 272. Whoever, being an 
inspector or judge of any election held within this State, knowingly 
and willfully, or corruptly, refuses or neglects to receive the vote 
of any legal voter at any election held within this State, shall be 
fined not more than five hundred doUars nor less than fifty dollars, 
and disfranchised and rendered incapable of holding any office of 
trust or profit for any determinate period. [R. S. 1 881, § 2188.] 

1. As to the indictment, see 27 Ind. 492. 

2. As to the evidence, see 17 Ind. 536; 26 id. 264. 

Sec. 4768M. Officer persuading voter. 273. Whoever, being an 
inspector, judge, or clerk of an election, attempts to induce, by 
persuasion, menace, or reward, or promise thereof, any elector to 
vote for any person, shall be fined not more than one hundred 
dollars nor less than ten dollars. [R. S. 1881, § 2189.] 

Sec. 4768//. Officer opening or marking ticket. 274. Whoever, 
being a judge, inspector, clerk, or other officer of an election, 
opens or marks, by folding or otherwise, any ticket presented by 
such elector at such election ; or attempts to find out the names 
thereon ; or suffers the same to be done by any other person, be- 
fore such ticket is deposited in the ballot-box, — shall be fined in 



747] ELECTION CRIMES. [§§ ^'jG'^jj 4768;272 

any sum not more than one hundred dollars nor less than ten dol- 
lars, and disfranchised and rendered incapable of holding any 
office of trust or profit for any determinate period. [R. S, i88i, 
§ 2190.] 

Sec. 4768^'. Deceiving illiterate voter, 275. Whoever furnishes 
an elector who can not read the English language, at any election 
held pursuant to law, with a ticket which such person shall repre- 
sent to such elector as containing a name different from the one 
printed or written thereon, shall be fined not more than one hun- 
dred dollars nor less than ten dollars, and disfranchised and ren- 
dered incapable of holding any office of trust or profit for any 
determinate period. [R. S. 1881, § 2191.] 

Sec. 4768/'y&. Defrauding voter. 276. Whoever fraudulently causes 
or attempts to cause any elector, at any election held pursuant to 
law in this State, to vote for a person different from the one he in- 
tended to vote for, shall be fined not more than one hundred dol- 
lars nor less than ten dollars. [R. S. 1881, § 2192.] 

Sec. 4768//. Using violence, threats, or restraint, 277. Whoever, 
for the purpose of influencing a voter, seeks, by violence or threats 
of violence or threats to enforce the payment of a debt ; or to eject 
or threatens to eject from any house he may occupy ; or to begin 
a criminal prosecution ; or to injure the business or trade of an 
elector; or, if an employer of laborers or an agent of such em- 
ployer, threatens to withhold the wages of or to dismiss from ser- 
vice any laborer in his employment ; or refuses to allow to any 
such employee time to attend at the place of election and vote, — 
shall be fined not more than one thousand dollars nor less than 
twenty dollars, imprisoned in the state prison not more than five 
years nor less than one year, and disfranchised and rendered incap- 
able of holding any office of trust or profit for any determinate 
period. [R. S. 1881, § 2193.] 

Sec. 4768;;/7;2. Seizing ballot-box. 278. Whoever, at any election, 
unlawfully, either by force, fraud, or other improper means, obtains 
or attempts to obtain possession of any ballot-box or any ballots 
therein deposited, while the voting at such election is going on or 
before the ballots are duly taken out of such ballot-box and 
counted by the election board according to law, shall be fined not 
more than one thousand dollars nor less than fifty dollars, impris- 
oned in the state prison not more than five years nor less than 
one 3^ear, and disfranchised and rendered incapable of holding any 
office of trust or profit for any determinate period. [R. S. 1881, 
§ 2194.] 

Sec. 4768;?;2. Destroying ballot-box or ballots. 279. Whoever 
unlawfully destroys or attempts to destroy any ballot-box used, or 
any ballot or vote deposited, or any poll-book kept at any election, 



§§ 4/68^^ — 47^8^/] ELECTIONS. [748 

shall be fined not more than one thousand dollars nor less than 
fifty dollars, imprisoned in the state prison not more than five 
years nor less than one year, and disfranchised and rendered in- 
capable of holding any of^ce of trust or profit for any determinate 
period. [R. S. 1881, § 2195.] 

Sec. 4:76Soo. Inducing voter to re-sign petition. 280. Whoever, by 
persuasion, menace, or reward, or promise thereof, induces or 
attempts to induce any legal voter of any county to re-sign any 
written or printed petition for the relocation of the county seat of 
any county or any remonstrance against such relocation, shall be 
fined not more than five hundred dollars nor less than ten dollars, 
to which may be added imprisonment in the county jail not more 
than six months nor less than ten days, and he shall be disfran- 
chised and rendered incapable of holding any office of trust or 
profit for any determinate period. [R. S. 1881, § 2196.] 

Sec. 4i76Spp. Selling* signature to petition. 281. Whoever, being 
a legal voter of any county, sells or barters or offers to sell or 
barter for money, property, or thing of value, or for any promise 
or hope of reward, given or offered by any person, his signature 
to any written petition for the relocation of any county seat, or to 
any remonstrance against such relocation, shall be fined not more 
than five hundred dollars nor less than ten dollars, to which may 
be added imprisonment in the county jail not more than six 
months nor less than ten days, and he shall be disfranchised and 
rendered incapable of holding any office of trust or profit for any 
determinate period. [R. S. 1881, §2197,] 

Sec. 4768^^. Fraud at special election. 282. Whoever votes more 
than once at any election for the relocation of any county seat, or 
for aid to any railroad, either at the same precinct or at different 
precincts, shall be deemed guilty of a misdemeanor, and, on con- 
viction, shall be fined in any sum not more than fifty dollars nor 
less than ten dollars. [R. S. 188 1, § 2198.] 

Sec. 4768^;^. Buying vote at special election. 283. Whoever buys 
or offers to buy, either by himself or by any other person, or fur- 
nishes any money or any other means to be used, or who shall 
permit his money or other means to be used, to hire, buy, or in- 
duce any person to vote for or against the removal of a county 
seat, or for or against the appropriation of aid to any railroad ; or 
whoever attempts to induce any person to vote for or against 
such removal or appropriation, by offering any reward or favor, — 
shall be deemed guilty of a mxisdemeanor. And whoever, being 
a voter of this State, sells cr barters or offers to sell or barter, 
for any money or property, or any thing of value, or any prom- 
ise or hope of reward given or offered by any person or persons, 
his vote for the removal or for the relocation of a county seat, 



749] ELECTION CRIMES. [§ 4768.?^ 

or against such removal or relocation, or against such appropria- 
tion or in favor of such appropriation for said railroad, shall be 
deemed guilty of a misdemeanor. And, upon conviction of violat- 
ing any of the provisions of this section, the person so offending 
shall be fined in any sum not more than one hundred dollars nor 
less than twenty-five dollars, and disfranchised and rendered in- 
capable of holding any office of trust or profit for any determinate 
period not exceeding five years. [R. S. 1 88 1, § 2199.] 

Sec. 4768^^. Bribing to procure election. 284. Whoever gives or 
offers a bribe, threat, or reward to procure his election to any 
office under the constitution or laws of this State, shall be fined 
not more than one thousand dollars nor less than fifty dollars, and 
imprisoned in the state prison not more than five years nor less 
than one year ; and such person so offending, if elected to such 
office, shall be disqualified from holding office during the term for 
which he may have been elected, and also disfranchised for any 
determinate period. [R. S. 1881, §2200.] 



CHAPTER LXIX. 



4990. 



4992 





HEALTH 




SEC. 


State board — Appointment. 


4994- 


Oath of office. 


4995- 


Duties of secretary. 




Salaries— Expenses. 


4996. 


Meetings— Qiiorum — Rules. 


4997- 


Duties — Annual report. 


4998. 


Vital and sanitary statistics. 


4999. 


Local boards. 


5000. 



SEC. 

49S6. State board — Appointment. 4994. Report of board— Misdemeanor. 

4987. Oath of office. 4995. Duty of physcians and others — Misde- 

49S8. Duties of secretary. meaner. 

4989. Salaries— Expenses. 4996. Duties of clerk 



Records — Forms — Blanks 



4991. Duties — Annual report. 4998. Annual appropriations 



Misdemeanor 



4993. Local boards. 5000. Repealing clause. 

[1891, p. 15. Reconsidered and passed over the Governor's veto February 19, 
1891, and it took effect immediatelj by reason of the emergency clause.] 

Sec. 4986. State board — ^ Appointment, i. A board is hereby 
created and established Avhich shall be known under the name of 
the State Board of Health. It shall consist of five members 
as follows : Four members who shall be appointed by a board of 
appointment consisting of the governor, secretary of state and 
auditor of state, a majority of which shall constitute a quorum, 
who shall meet in the office of the governor within ten days after 
the passage of this act and shall proceed to appoint two mem- 
bers of said board of health whose term of office shall expire on 
the first day of March, 1893, and two whose term of office shall 
expire on the first day of March, 1895. Thereafter two members 
shall be appointed biennially who shall hold their offices for four 
years. Any vacancy in said board of health shall be filled by 
said state officers. Said board of health, when so appointed, shall 
elect a secretary, who shall be a physician, and shall be the health 
officer of the State, and shall hold his office for four years, who, 
by virtue of his election, shall be a member of said state board of 
health. 

Sec. 4987. Oath of office. 2. Before entering upon the discharge 
of their duties the members of said board of health shall each take 
and subscribe an oath of office before the clerk of the supreme 
court, or any other officer authorized to administer an oath, that 
they will faithfully and honestly discharge the duties of said 
offices, which oath of office shall be filed in the office of the secre- 
tary of state. 

Sec. 4988. Duties of secretary. 3. The secretary of the board 
shall keep his office at Indianapolis, and shall perform such duties 

750 



75 1] SECRETARY. [§§4989 499 1 

as are prescribed by this act, or may be required by the board. 
He shall keep the custody of all papers, books, documents and 
other property belonging to the board ; he shall, so far as practica- 
ble, communicate with other state boards of health, and with the 
county boards of health within this State ; he shall keep and file 
all reports received from such boards, and all correspondence of 
the office appertaining to the business of the board. He shall pre- 
pare blank forms of returns and such instructions as may be neces- 
sary, and forward them to the secretaries of the several county 
boards of health throughout the State. He shall collect informa- 
tion concerning vital statistics, knowledge respecting diseases, and 
all useful information on the subject of hygiene, and through an 
annual report and otherwise, as the board may direct, shall dissemi- 
nate such information among the people. 

Sec. 4989. Salaries — Expenses. 4. The secretary shall receive 
an annual salary not to exceed twelve hundred dollars, which shall 
be fixed by the members of the board. The board shall quarterly 
certify the amount due him, and, on presentation of said certifi- 
cate, the auditor of state shall draw his warrant on the state treas- 
urer for such amount. The members of said board shall receive 
no other compensation for their services but their traveling and 
other necessary expenses while employed on the business of the 
board. Such expenses shall be paid in like manner as the salary 
of the secretary. 

Sec. 4990. Meetings — Quorum — Rules. 5. The board shall 
meet at least once in each quarter in the city of Indianapolis, and 
as often as they may deem necessary and at such other times and 
places as they may deem expedient during epidemics. A major- 
ity shall constitute a quorum for the transaction of business. They 
shall choose one of their number for president, who shall serve two 
years, unless his term of office as a member of the board shall 
sooner expire. They may adopt rules and by-laws subject to the 
provisions of this act, and in harmony with other statutes in rela- 
tion to the public health, to prevent outbreaks and the spread of 
contagious and infectious diseases. 

Sec. 4991, Duties — Annual Eeport. 6. The state board of health 
shall have the general supervision of the health and life of the citi- 
zens of the State. They shall study the vital statistics, and endeavor 
to make intelligent and profitable use of the collected records of 
death and sickness among the people ; they shall make sanitary 
investigations and inquiries, respecting the causes of disease and 
especially of epidemics; the causes of mortality, and the effects 
of localities, employments, conditions, ingesta, habits and circum- 
stances, on the health of the people. They shall have power to 
regulate and prescribe the location of the plumbing, drainage, 
water supply, disposal of excreta, heating and ventilation, of an)- 



§§4992) 4993] state board of health. [752 

public building or institution, and to inspect the same. They shall 
annually, on or before the first day of December, make a report 
to the governor of their doings and investigations for the year 
ending October 31, next preceding, with such suggestions with 
regard to legislation as they may deem important in reference to 
the public health. 

Sec. 4992. Vital and sanitary statistics. 7. The state board of 
health shall have supervision of the system of registration of births, 
deaths and marriages, as herein provided, and they shall make up 
such forms from time to time, as they may deem, necessary for the 
thorough registration and report of vital and sanitary statistics 
throughout the State. The secretary shall be superintendent of 
all such registration, and with consent of a majority of all members 
of said board, shall have the pov/er to appoint and fix the compen- 
sation of any clerical force that may within his judgment be or 
become necessary for the making and keeping the records of said 
board of health. 

For construction of corresponding section of the act of iSSi, see iii Ind. loi. 

Sec. 4993, Local boards. 8. The trustees of each town, the 
mayor and common council of each incorporated city, except where 
a regularly constituted board of health, by ordinance of such city 
exists, or may hereafter be created, and the board of commission- 
ers of each county, shall constitute a board of health, ex officio, 
for each town, city and county respectively of the State, whose 
duty it shall be to protect the public health by the removal of 
causes of diseases when known, and in all cases to take prompt 
action to arrest the spread of contagious diseases, to abate and 
remove nuisances dangerous to the public health, and perform such 
other duties as may from time to time be required of them by the 
state board of health pertaining to the health of the people. They 
shall annually at their first meeting in December elect a secretary, 
who shall be the executive officer of the Board, who shall serve as 
such health officer for one year from the first of January next ensu- 
ing his election. He shall receive such compensation from the 
town, city or county treasury respectively as the board electing 
him may determine. The records of the county board of health 
shall be kept at the county seat. 

1. See § 3098 and § 3106, clause 35. 

2. Cities and towns bj ordinance may regulate certain nuisances tending 
to impair the health, notwithstanding the acts denounced in the ordinances are 
crimes under the laws of the State, R. S. 18S1, § 2066, proviso. 

3. A physician who is elected by the board of county commissioners, acting 
as a board of health, as its secretary, is entitled to such compensation from the 
county treasury as such board of health may determine; and when so deter- 
mined, it is the duty of the board of county commissioners as such to cause it 
to be paid out of the county treasury by the auditor's warrant for the amount 
on the treasurer. The amount, however, need not be fixed by the board of 
health as such; it may be fixed by the board of county commissioners; when 



753] DUTY OF PHYSICIANS. [§§ 4994, 4995 

allowed by them the allowance will be valid. The board of health can use the 
records of the county commissioners in which to enter its proceedings, and 
need not use separate records when the county commissioners constitute such 
board of health. No appeal lies from the board of health in fixing the com- 
pensation of the secretary. In that matter they have a discretion, loi Ind. 138. 

j^. After electing a secretary the board of health can not annul his elec- 
tion and elect a new one in his place. The term of his office is one year. The 
only qualification required of the secretary is that he must be a physician, 96 
Ind. 311. 

5. When the appointment is entered of record in the commissioners' 
record it can not be shown that the appointment was made at another time 
and that the board was not then in session, even though the record is unsigned, 
96 Ind. 311. 

Sec. 4994. Eeport of board — Misdemeanor. 9. The board of 
health of each county shall be subordinate to the state board of 
health, and it shall be the duty of the secretary of such county 
boards, at least once in each quarter, to report such facts and sta- 
tistics as may be required under instructions from and in accord- 
ance with blanks furnished by said board; and it shall be the duties 
of the secretaries of town and city boards of health to make like 
reports to the secretaries of the county boards in which such towns 
and cities are situated, to which county boards of health such town 
and city boards are subordinate. It shall be the duty of county 
boards of health to promulgate and enforce all rules and regula- 
tions of the state board of health in their respective counties, 
which may be issued from time to time for the preservation of the 
public health, and for the prevention of epidemic and contagious 
diseases. And the secretary of any board of health who shaJl fail 
or refuse to promulgate and enforce such rules and regulations, 
and any person or persons, or the officers of any corporation, who 
shall fail or refuse to obey such rules and regulations, shall be 
deemed guilty of a misdemeanor, and upon conviction thereof 
shall be fined in any sum not exceeding one hundred dollars, and 
upon a second conviction the court or jury trying the cause may 
add imprisonment in the county jail for any period not exceeding 
ninety days. 

Sec. 4995, Duty of physicians and others— Misdemeanor. 10. It 

shall be the duty of all physicians and accouchers in this State to 
report to the secretary of the board of health of the town, city or 
county, in which they may occur, all births and deaths which may 
occur under their supervision, with a certificate of the cause of 
death, and such co-relative facts as may be required in the blank 
forms, furnished as provided in this act. When any birth or death 
may occur, with no physician or accoucher in attendance, then 
such births or deaths shall be reported by the householder where, 
or under whose observations, such birth or death may occur, Avith 
the cause of death, if such be known. Any death coming under 
the jurisdiction or supervision of any coroner, shall be by him re- 
ported to the secretary of the board of health of the town, city or 
48 



§§ 499^ S^OO] STATE BOARD OF HEALTH. [754 

county, in which such death may occur, and such death so re- 
ported shall not be required to be reported by any other person. 

Sec. 4996. Duties of clerk, ii. It shall be the duty of the 
clerk of the circuit court, of each county, to report to the secre- 
tary of the county board of health, on or before the fifth day of 
each month, the number of marriages for the preceding month, 
with such facts relating thereto as may be provided for by a blank 
furnished to such clerk by the secretary of the county board of 
health. 

Sec. 4997. Records — Forms — Blanks. 12. It shall be the duty 
of all boards of health to keep a complete record, according to the 
forms prescribed by the state board, of all marriages, births and 
deaths reported to them under the provisions of this act, and such 
record shall be open to the inspection of any citizen without fee. 
It shall be the duty of the state board of health to prescribe the 
forms for the records of marriages, births and deaths to be used in 
the office of the secretary of the county board, and prescribe such 
forms, and the secretary of the state board shall, upon requisition 
of the health officer of each county, furnish him, and through him 
the secretary of each local board in such county, such blanks as 
may be required for the gathering and reporting of vital and sani- 
tary statistics according to the provisions of this act. 

Sec. 4998. Annual appropriation. 13. The sum of five thou- 
sand dollars per annum, or so much thereof as may be necessary, 
is hereby appropriated to pay the salary of the secretary and other 
necessary expenses of the state board of health, according to the 
provisions of this act ; and the expenses of the state board of health 
shall in no event exceed the amount herein appropriated. 

Sec. 4999. Misdemeanor. 14. Any person or persons, or the 
officers of any corporation, who shall violate any of the provisions 
of this act shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be fined in any sum not exceeding one 
hundred dollars. 

Sec. 5000. Repealing clause. 15. All laws and parts of laws 
in conflict with this act are hereby repealed. 



CHAPTER LXX. 
HIGHWAYS. 



ART. 

3. Ge?ieral provisions. 



ARTICLE 3— GENERAL PROVISIONS. 



SEC. SEC. 



5040. Petition by abutting owners. 5043. When petitioners may incorporate. 

5041. Action on petition. 5044. Rights of such corporation. 

5042. Power of petitioners. 

[1881 S., p. 542. Not approved, but went into force September 19, 1881.] 

Sec. 5040. Petition by abutting owners, i. Owners of real 
estate abutting upon any street, alley, or highway in this State 
may petition the proper authorities of the town or city, or the 
board of county commissioners of the county where the street, 
alley, or highway may be located, to grant right of way for the 
improvement of such street, alley, or highway. 

This section does not give the board of county commissioners power to grant 
a right of way for the improvement of a street, alley or highway in a town or 
city in the county ; within the city the common council, and within the town 
the board of trustees, have exclusive authority and control over the streets, 
alleys and highways. 

Sec. 5041. Action on petition. 2. When such petition has been 
signed by persons of lawfu) age who are the owners in fee-simple 
of more than half the real estate abutting upon any street, alley, 
or highway in this State (if the petitioners are also a majority of 
those who own such real estate), it shall be the duty of the proper 
officers, of the town or city where such street or alley may be sit- 
uated, or of the board of county commissioners of such county 
where such highway may be located, to grant right of way for 
such improvement. 

It would seem that the grant can be conferred only of an entire street or 
alley, and not of a part of it 

Petition. 



To the Common Council\ox^ Board of Trustees] of the city [or, toxvn] of-^ •" 

The undersigned, all persons over the age of twenty-one years and 
the owners in fee-simple of more than one half of the real estate abutting upon 

755 



§§ 5042 5044] HIGHWAYS. [756 

Pike street, and also a majority in number of all those who own real estate so 
abutting on said street, pray that you will grant to them the right of way over 
said street for the improvement thereof, under an act of the general assembly 
of the State of Indiana, entitled "An act allowing owners of real estate to 
petition for the improvement of streets, highways, etc., to obtain right of way for 
such, and for the organization of road corporations," of the acts of 1881. 
[Signed.] 

Journal Entry. 

Whereas, A. B. and others, more than one half of the owners of the 
real estate abutting upon Pike street of this city [or, town], who are of lawful 
age and Avho are also a majority of all those who own real estate abutting on 
said street, have petitioned this common council [or, board of trustees] to grant 
them the right of way over said street for the improvement of the same, under 
an act of the general assembly of the State of Indiana, entitled "An act allow- 
ing owners of real estate to petition for the improvement of streets, highways, 
etc., to obtain right of way for such, and for the organization of road corpora- 
tions," of the acts of 1881; therefore, 

It is ordered that the right of way over said Pike street be and the same is 
hereby granted to said A. B. and said others, under the provisions of said 
recited act of the general assembly of this State, for the purpose of improving 
the same. Said improvement shall be done under the supervision of the city 
[or, town] civil engineer, and shall be done according to the following speci- 
fications, to wit: [Give thein iji detail.] 

Sec. 5042. Power of petitioners. 3. When any right of way has 
been granted for the improvement of any street or alley, the per- 
sons who have signed the petition for such improvement may pro- 
ceed, under the supervision of a competent civil engineer, to be 
employed by the town or city where the same is located, to grade 
and pave or gravel such street or alley. 

The city or town does not lose its control over the street by granting the 
right of way to petitioners. 

Sec. 5043. When petitioners may incorporate. 4. When right of 
way has been granted by the board of county commissioners for 
the improvement of any highway in this State, the petitioners and 
others interested in such highway may form themselves into a cor- 
poration, under the laws of this State, to build a free or toll road, 
as may to them seem best. 

A corporation can not be formed under the general gravel road laws to build 
a toll road within a city or town. 

Sec. 5044. Rights of such corporation. 5. A corporation formed 
under this act shall have all the rights and privileges of other simi- 
lar corporations in this State. 



-SEC. 




SEC. 


6227. 
6228. 


County board may establish. 


6234. 


Superintendent. 


6235- 


6229. 


Commitment. 


6236. 


6230. 


Transfer from jail. 




6231. 


Prisoners kept at labor. 


6237. 
6238. 


6232. 


Cities and towns may commit. 


6233. 


Quarterly reports — Receipts — Expenses. 


6239. 



CHAPTER XCVI. 
PRISONS. 

ART. ART. 

-5. The Work-lionse. 6. The Hotne for Friendless Women. 

ARTICLE 5— THE WORK-HOUSE. 

Inspection by grand jury. 
Visitation. 

Duties of county physician and super- 
intendent. 
Use of city or town work-house. 
Punishment of prisoners. 
Credit for work. 

[1879 S., p. 247. Approved March 31, 1879, and in force May 31, 1879.] 

Sec. 6227. County board may establisli. i. It shall be lawful for 
the board of commissioners of any county in this State, in its dis- 
cretion, whenever it shall deem it advisable, to use property then 
owned by it, or to purchase or provide a tract of land, in the name 
of the county, and thereon to establish and maintain a work-house 
— the expense to be paid out of the general fund of the county. 

Sec. 6228. Superintendent. 2. When such work-house is estab- 
lished in any county, the board of commissioners thereof shall em- 
ploy some proper person, to be called the ' * Superintendent of the 
County Work-house, " to take charge of the same upon such terms, 
and under such restrictions, rules, and regulations as such board 
may from time to time adopt : Provided, That if the work-house 
be established upon the county poor farm, then the superintendent 
of the county asylum may be required to take charge and control 
of the work-house. 

Sec. 6229. Commitment. 3. When such work-house is ready for 
occupancy, the board of commissioners shall* give notice thereof, 
by an order entered upon its records and such other notice as it 
may deem proper; and, thereupon, any court, judge, mayor, 
magistrate, justice of the peace, or other officer, may sentence any 
person to the county work-house instead of the county jail; which 
fact shall be stated in the record of the judgment, and set forth on 

7.S7 



§§ 6230 6232] WORK-HOUSES. [758 

the face of the mitimus or other writ issued to the officer whose 
duty it may be to execute the same. In every such case, such 
officer shall deliver such person to the superintendent of the county 
work-house, who shall receive the prisoner, and hold and restrain 
him of his liberty for the period he may have been sentenced by 
such court, unless sooner released by a pardon, remission, or the 
judgment of a proper court: Provided, That in all cases of commit- 
ment to such work-house, the judge, mayor, magistrate, or justice 
of the peace, who made such commitment is authorized and em- 
powered to remit the penalty imposed by him, for good cause 
shown. 

Sec. 6230= Transfer from jail. 4. Whenever any person shall 
have been sentenced to imprisonment in the county jail, he may 
be transferred to the work-house at any time during the period of 
his imprisonment, under such orders, rules, and regulations as the 
board of commissioners of such county may, from time to time, 
adopt; which orders, rules, and regulations, when adopted, the 
sheriff, jailer, or other person having the custody of the county 
jail, shall obey; and for his neglect or refusal to so obey, he shall 
be fined by any court of the county having criminal jurisdiction, in 
any sum not less than fifty dollars, to which may be added impris- 
onment in the work-house not exceeding sixty days. 

Sec. 6231. Prisoners kept at labor. 5. All prisoners and other 
persons held in the vv^ork-house shall, as far as may be consistent 
with their age, sex, and ability, be kept at hard labor in such 
manner as the board of commissioners shall deem most advan- 
tageous to such county, and under such rules and regulations as 
such board may, from time to time, prescribe — such labor to be 
performed in or about the work-house, or upon any public wharf, 
street, alley, highway, or thoroughfare within the county, or upon 
any other work or public improvement which such board may 
deem for the welfare of the citizens of such county, or at such 
other labor, and in such manner, as such board may deem best. 
Such work shall be done under the direction and supervision of 
the superintendent of the work-house ; and for this purpose, the 
board of commissioners may meet; at any time, and make all proper 
orders, which shall be spread upon the records of such court. 

Sec. 6232. Cities and towns may commit. 6. Any person sen- 
tenced to imprisonment, or committed for a failure to pay or 
replevy any fine, forfeiture, and costs, under any ordinance or law 
of any town or city in such county having a Avork-house established, 
may be com.mitted to such Avork-house, under such contracts and 
agreements as such town or city and the board of commissioners 
of such county may, from time to time, make. Such prisoners, 
at all times, shall be subject to the rules and regulations adopted 
for the conduct and management of the work-house. 



759] REPORTS AND INSPECTION. [§§^233 6236 

Sec. 8233. Quarterly reports — Receipts — Expenses. 7. The super- 
intendent of the work-house shall make a detailed report, in writ- 
ing, to the board of county commissioners, on the first day of each 
regular term of such court, showing the income received and the 
expense incurred for the last preceding quarter. All sums received 
by the superintendent, from any and every source, shall be paid 
by him to the county treasurer, who shall give him a receipt there- 
for, to be retained by him, and a duplicate thereof, which said 
superintendent shall file with said report. All expenses incurred 
shall be paid by the treasurer out of the county funds, on a proper 
warrant draAvn by the auditor, on the order of the board, as in 
other cases, and not otherwise. All moneys so received or paid out 
by the treasurer shall be paid into and out of the general county 
fund. Such treasurer and auditor shall each keep an accurate 
account of the income and outlay, to be known as the ** County 
work-house account." 

Sec. 6234. Inspection by grand jury. 8. The grand jury, at each 
term of the court of such county for which they are sitting, shall 
make personal inspection of the condition of the work-house, as to 
the sufficiency of the same for the safe-keeping of prisoners, fheir 
convenient accommodation and health, the manner in which the 
same has been kept, and how the prisoners have been kept at 
labor since the last term. They shall further inquire as to the 
income received and expense incurred since the last term ; may 
examine the books and papers of the work-house, and the records 
and files of any county officer or officers ; and may send for books 
and papers anywhere within the State. The foreman may admin- 
ister all oaths necessary in making such inquiries ; and for any 
refusal to attend or testify, the court for which they are sitting 
may punish the offender for contempt, in the manner provided by 
law. Such grand jury shall make report, in writing, to the court 
for which they are sitting; which shall be spread upon the records 
thereof, and a duplicate shall be filed with the board of commis- 
sioners at their next session. And such board shall consider all 
complaints and recommendations of the grand jury, and obey the 
same, or place on record their reasons for not so doing. 

Sec. 6235. Visitation. 9. The members of the board of com- 
missioners, and any judge, magistrate, or justice of the peace of 
such county, or mayor of any town or city having the right to 
commit prisoners to the work-house, may visit the same at any 
time, or the prisoners wherever they may be at work, for the pur- 
pose of determining whether the rules and regulations made for the 
management of said work-house and prisoners are duly enforced. 

Sec. 6238. Deities of county physician and superintendent. 10. 

The county physician shall visit the work-house when required by 
the superintendent. The superintendent shall give bond, witli 



§§ 6237 6240] HOME FOR FRIENDLESS WOMEN. [760 

security, for the faithful performance of his duties, to be approved 
by the board of county commissioners. He, and his subordinates 
having charge of the prisoners, shall have the right to enforce dis- 
cipline and obedience of all orders, rules, and regulations made for 
their governm.ent, and arrest any escaped prisoner, wherever found 
within the State, and conduct him to the work-house. 

Sec. 6237. Use of city or town work-house, ii. In case there 
is a work-house in any county owned and maintained hy any town 
or city within such county, it shall be lawful for the board of com- 
missioners of such county to provide, by written contract with 
such town or city, for the custody and maintenance of any or all 
able-bodied persons sentenced to confinement within the county 
jail, and to provide for their removal to and confinement in such 
work-house. And the sheriff, jailer, or other person having the 
custody of the jail, shall obey, carry out, and perform all orders, 
rules, and regulations of the board made in pursuance of such 
agreement. For any neglect or refusal, he shall be subject to the 
like penalties provided in section four of this act [§ 6230]. 

• Sec. 6238. Punishment of prisoners. 12. Any person sentenced 
to or held in the work-house, who, being physically able to work, 
refuses to work, may be subjected to physical punishment, under 
such rules as the board having control of the work-house may 
adopt ; and may be confined in solitary confinement, or fed on 
bread and water only, until he consent to work. 



6239. Credit for work. 13. Any person held in or com- 
mitted to the work-house for a failure to pay any fine or costs shall 
be required to work as provided for by the provisions of this act, 
and credited on such fine and costs at the rate of one dollar per 
day for each day's work. But if such person refuse to work, then, 
for each day he shall so refuse, he shall not be entitled to receive 
any credit, and he may also be punished as provided for in this 
act. 

ARTICLE 6— THE HOME FOR FRIENDLESS WOMEN. 

SEC. SEC. 

6240. When females majr be sentenced. 6244. Fines for g-amblin^. 

6241. Trustees to enforce judgment. 6245. Proceeds of forfeited recognizances. 

6242. Inspection. 6246. Mayor's accounts — Staternents. 

6243. Fines for lewdness. 6247. Reports. 

[1867, p. 228. Approved and in force March 11, 1867.] • 

Sec. 6240. When females may be sentenced, i. When any city, 
or private corporators, or other persons, shall have established in 
this State a home for friendless women upon principles of protec- 
tion and reformation of abandoned or erring women, which, in the 
opinion of the board of county commissioners of the county in 
which such home is situated, duly recorded, after examination, is 



76l] • FINES. [§§6241 — 6244 

in a condition to provide for and restrain of liberty any one com- 
mitted to their charge, on conviction of any woman or girl of any 
crime or misdemeanor or violation of any city ordinance, in any of 
the superior or inferior courts of the State or of any city therein, 
the punishment whereof shall be imprisonment at hard labor or 
otherwise, the court may, in its discretion, and with the consent 
of the trustees or acting authorities of such home for friendless 
women, and with a view to reformation 'as well as punishment, 
order the imprisonment to be made and done in such home for 
friendless women; and such imprisonment shall be held as legal 
and rightful, or as if made in any state prison or in any county or 
city jail in the State. The mayor or city judge of any incorporated 
city may sentence and commit such persons, on conviction, to such 
home, for the same period of time that a circuit court could do for 
a like offense. 

Sec. 6241. Trustees to enforce judgment. 2. The trustees, man- 
agers, or other authorities of such home for friendless women, shall, 
in all things, be governed by the laws of the State in making such 
imprisonment at hard labor, solitary confinement, or otherwise, as 
shall be adjudged by the court on any such conviction or convic- 
tions. 

Sec, 6242. InGpection. 3. Any such home for friendless women 
shall, at all reasonable hours, be open for the inspection of any such 
court or any grand jury, the governor, any state officer, any com- 
mittee of the general assembly of the State, the council of any city, 
or the board of commissioners of the county in which it is situate. 

• 

[1873, p. 141. Approved and in force February 26, 1S73.] 

Sec. 6243. Fines for lewdness, i. In all incorporated cities of 
this State where there is now or shall hereafter be established an 
incorporated home for friendless women, incorporated under the 
laws of this State, all fines and penalties assessed and collected by 
the mayor or other judicial officer of such city for the breach of 
any ordinance of such city in relation to houses of prostitution, or 
in relation to the keepers, frequenters, or inmates thereof ; or for 
the breach of any ordinance of such city for the suppression of 
vice or immorality, or'for the suppression of houses'of ill-fame, or 
for the punishment of the keepers, frequenters, or inmates thereof, 
when so collected, shall be paid over to the board of trustees of 
such home for friendless women in such *city, to be applied to 
defraying the current expenses of such home. 

Sec. 6244. Fines for gambling. 2. In all incorporated cities 
of this State where there is or shall be established a home for 
friendless women, as described in the preceding section, all fines 
and penalties imposed or assessed and collected by the mayor or 



§§ 6245 6247] HOME FOR FRIENDLESS WOMEN. [762 

Other judicial officer of such city for the breach of any ordinance 
against professional gambling, or against gaming or gambling of 
any kind ; or against the keepers of gambling houses, or the fre- 
quenters or inmates thereof, when so collected, shall be paid over 
by the city authorities to the board of trustees of such home for 
friendless women in such city, for the purposes specified in the last 
section. 

Sec. 6245. Proceeds of forfeited recog^nizances. 3. Whenever 
any person shall be arrested for the breach of any of the ordinances 
mentioned in either of the two foregoing sections, and shall give a 
bond or recognizance, with or without security, conditioned for his 
appearance before the mayor or any other judicial officer having^ 
jurisdiction to try the case, to answer the charge, and such bond 
or recognizance shall be forfeited, such forfeiture, when collected, 
shall be paid to the trustees of the home for friendless women 
which may then exist in such city as aforesaid. 

Sec. 6246. Mayor's accounts — Statements. 4. The mayor, or 
other officer collecting any fines contemplated by this act, shall 
keep a separate account thereof; and, at the end of each period 
of three months from and after the taking effect of this act, such 
mayor or other offi.cer shall pay the amount, so collected during 
the preceding three months, into the city treasury, for the use of 
the trustees of such home for friendless women ; and said mayor 
shall, at the same time, make a detailed statement to the city 
council, showing the amount that has been so paid into the city 
treasury, on what account collected, and that it belongs to the said 
tRistees under the provisions of this act; and, thereupon, the com- 
mon council of such city shall make an order for the payment of 
the same to said trustees, for the purposes aforesaid, and the same 
shall be paid accordingly. 

Sec. 6247. Reports. 5. It shall be the duty of the trustees of 
such home for friendless women, on or before the tenth day of 
January of each year, to make a detailed report to the common 
council of such city of the operations and business affairs of such 
home, with a statement of the receipts and expenditures thereof, 
and such other matters as are usually embraced in reports of kin- 
dred institutions, for the year ending on the thirty-first day of the 
preceding December. 

This and the two preceding sections are constitutional, 50 Ind. 215. 



CHAPTER XCVIII, 



TAXATION. 



ART. ART. 

1. What Assessed. 17. 

2. What Exe?nj>ted. 18. 

3. When Assessed. 19. 

4. Who Shall List. 

5. Where Assessed. 20. 

6. Definitions and Rules. 

7. Manner of Listing Personalty. 21. 
S. Ba7iks ajid Batikers. . 22. 
9. Foreig7i Corporations. 23. 

10. Domestic Corporations. 24- 

11. Railroads. 25. 

12. Building Associations. 26. 

13. Duties of Totvnship Assessor. 27. 

14. County Board of Revierv. 28. 
15: State Board of Tax Commission- 
ers^ etc. 29. 

16. Duties of Coujity Auditor. 



Duties of County Treasurer. 

Levy and Sale of Perso7ialty. 

Proceedings against Corpora- 
tions. 

Collections from Persons Re- 
moved ajid Fiduciaries. 

Lien of Taxes ajid their Payment. 

Assessments by Treasurer. 

Collection by Sale of Realty. 

Redemption of Realty. 

Conveyance of Realty. 

Collectio7i fr07n Uiisold Realty, 

Tax-titles. 

Treasurer's Settleme7its a7id De- 
fa 71 Its. 

Ge7ieral Provisions. 



ARTICLE I— WHAT ASSESSED. 



SEC. 

6269. Polls and property. 

6270. Poll-tax. 



SEC. 

6271. Property taxable. 

6272. "Realty" and "personalty" defined. 



[1891 S., p. 199. Approved and in force March 6, 1891.] 

Sec. 6269. Polls and property, i. All taxes for the support 
of the government of this State shall be assessed on polls and on 
property listed and valued in an equal and ratable proportion 
(except such stocks and other property as may be specifically 
taxed) in the following manner, namely: The amount necessary 
and proper to be charged on each poll and on each hundred dol- 
lars' worth of property, for state expenditures and for school pur- 
poses, shall, from time to time, be fixed by law; and the amount 
to be charged on each poll and on each one hundred dollars' 
worth of property for county expenditures shall be determined 
by the board of county commissioners at their annual meeting 
in September, (i.) 

I. By an express provision of this tax law it is made applicable to cities. 
See §§ 3160 and 652i«. By a separate law^ it is made applicable to both cities 

763 



§ 6269] TAXATION. [764 

and towns, § 3263. Some of the sections, and parts of sections of this act, are 
not applicable to either a city or town, because of their non-applicabilitj. But 
wherever applicable this law repeals the tax laws especially adopted for cities 
and towns ; and the provisions of this act should be followed instead of those 
acts. 

2. So far as thej could be used the sectional numhering of the Revised Stat- 
utes of 1881 have been retained ; and where an omission occurs it is because the 
tax law of 1891 contains no corresponding section. At the end of each section 
is inserted the number of the corresponding section of the tax law of 1881, as 
published in the acts of that j'ear. 

Some of the taxes levied bv the board of county commissioners are as 
follows: Tax to pay county bonds, and to provide a sinking bond therefor, R. 
S. 1881, § 5753. Tax to pay interest on bonds, R. S. 1881, § 5754; to build a 
county poor asylum, R. S. 1S81, § 6093; poor tax, R. S. 1881, § 6099; township 
and road tax, R. S. 1881, § 5995 ; free road tax, Acts 1889, p. 372 ; El. Sup. §§ 21S4 
to 21S8; purchase of turnpike, Acts 18S9, p. 276; El. Sup. § 1460; Acts 1885, p. 
209; El. Sup. § 1452; bonds for court-house, Acts 1833, p. 70; El. Sup, § 1936; 
Acts 1889, p. 27; El. Sup. § 1938; tax for colleges, Acts 1889, p. 429; El. Sup. 
§ 1940; tax for high schools, Acts 1S89, p. 400; El. Sup. § 1944; railroad tax, 
§§ 4056, 4086; special school tax, § 4468; limitation of taxation, Acts 1889, p.' 
306; El. Sup. §§ 2138 and 2139; Acts 1885, p. 96; §§ 2135 to 2137. 

3. The following are some of the township levies: Library tax, § 3805; 
drainage repair tax, Acts 1883, p. 180; El. Sup. § 1181 ; special school tax for 
school-houses and supplies, ^ 4467; local school tax for tuition, § 4469; special 
school tax for debts, § 4471 ; road tax, Acts 1883, p. 68, § 20 ; El. Sup. § 1562. 

4. Levies in cities and towns can be found by the use of the index. 

5. "The word tax means burden, charge or imposition put or set upon 
persons or property for public uses," 27 Ind. 62. 

6. The constitution provides that " the general assembly shall provide by 
law for a ii7iiforin atid equal rate oi assessment and taxation^ and shall prescribe 
such regulations as shall secure a just valuation for taxation of all property, 
both real and personal," § 193. This, it has been held, does not require that the 
rate of assessment shall be uniform and equal for all purposes throughout the 
State ; but it does mean that the rate of assessment and taxation shall be uni- 
form and equal throughout the locality in which the tax is levied. Therefore 
a tax for road purposes assessed upon real estate only is repugnant to this sec- 
tion, 27 Ind. 223 ; see 5 Ind. 557; 9 Ind. 174; 11 Ind. 139; 34lnd. p. 229; 37 Ind. 
155; 44 Ind. 83. "To be sure, state taxes must be uniform throughout the 
count}^ the city taxes throughout the city. But city taxee need not be uniform 
throughout the different cities. It is sufficient if the taxes of a city are uniform 
throughout that city," 39 Ind. p. 432 ; 48 Ind. 568; 85 Ind. 341; 22 Ind. 204. 

7. But the specific tax upon dogs is upheld on another ground, that it is not 
a revenue measure, but a police regulation, 79 Ind. p. 12; 27 Ind. 223; 27 Ind. 
62; 27 Ind. 120; 27 Ind. 494. 

8. Laws to pay military hou7ities are constitutional, 28 Ind. 161, railroad 
aid bojids, 34 Ind. 185. See § 3152, notes. 

9. The fact that public officers contemplate an ujila-cvful use of the county 
revenue wall not render void a general levy for county purposes, 28 Ind. 161. 

10. Laws concerning assessfnents for street imfrovemeyits are not subject to 
the same restrictions that the constitution imposes on tax laws, 29 Ind. 329. 
Thus assessments {ox free gravel roads are not governed by the laws and prin- 
ciples applicable to taxation in general, 30 Ind. 77; and so draiiiage lavjs^ 14 
Ind. 199. Streets and highways may, however, be constructed with a general 
tax authorized by legislature, 30 Ind. 77. Such laws for local assessments are 
constitutional, 32 Ind. 37; 32 Ind. 325; 30 Ind. 77; 14 Ind. 199; 26 Ind, 119; 29 
Ind. 329; 37 Ind. 155 (Purdue University;. 

11. Taxes assessed or levied that are not authorized may be enjoined, 92 Ind. 
222; 29 Ind. 533; 76 Ind. 68; but if part are legal and part illegal the person 
asking an injunction must first pay or tender or offer to pay those that are due 



65] WHAT ASSESSED. [§§ 62/0, 62'Jl 



and legal, 24 Ind. 409; 32 Ind. 27; 61 Ind. 29; 69 Ind. 344; 99 Ind. 352; 59 Ind. 
61 ; 71 Ind. 2S1 ; 121 Ind. 416. Mere irregularities in the assessment is not suf- 
ficient ground for an injunction, 59 Ind. 61. An illegal assessment of personal 
property may be enjoined, 92 Ind. 222 (see 59 Ind. 61, 400); 76 Ind. 68, 130. A 
double assessment can not be enjoined until one is paid, 121 Ind. 416, 

12. A township trustee may be compelled by mandate to levy a tax to pay a 
debt, 25 Ind. 4S6; and so may a board of county commissioners, 86 Ind. 8, or a 
city or town, 86 Ind, 17. 

13. " Taxes ^xq fuhlic burdens^ of which every individual may be compelled 
to bear his part, and that in proportion to the extent of protection he receives, 
or the amount of property held by him, as the V/'ill of the legislature may direct. 
We know of no limits within which the power of taxation can be judicially 
restrained, so iar as regards the different kinds of property to which it may be 
applied, or the tenure under which such propertj^ is held. The power of taxa- 
tion is said to be an ingident of sovereignty, and co-extensive with that of 
which it is an incident. In the several States of this Union it extends to all sub- 
jects over which their sovereign power extends, and the sovereignty of a State 
extends to everything which exists by its own authority or is introduced by its 
permission. It can not be material, therefore, whether these lands be held by 
legal or equitable titles, or whether they were sold by the State or by individu- 
als, so far as regards the power of the State to tax them," 8 B. 352 ; 14 Ind. 354. 

The right of the State to impose taxes upon its citizens does not rest upon a 
contract, and is onlv limited by the fundamental law of the State, 22 Ind. 204; 
SB. 352. 

14. The power of taxation exists in the state governments concurreri:t and 
co-extensive ^vith that of the general government (except concerning imports 
and exports), and has for each the limit that neither may tax the legitimate 
machinery or agencies employed by the other in the exercise of its govern- 
mental powers and functions. Consequently a federal statute requiring proc- 
ess from courts to bear a stamp was held unconstitutional, 32 Ind. i. 

Sec. 6S70. Poll tax. 2. A poll tax shall be assessed upon every 
male inhabitant of this State between the ages of twenty-one and 
fifty years ; and every person shall be listed for his poll tax in the 
township, town or city of his residence. (2.) 

1. City poll tax, § 3156; town poll tax, § 3333, cl. 15. The board of county 
commissioners may exempt from the payment of his poll tax any person unable 
to pay it. R. S. 1881, § 580S. 

2. Real estate is liable for the poll tax assessed against the owner thereof, 
although his title be extinguished afterward by the foreclosure of a mortgage 
thereon of older date than his purchase, 41 Ind. 410; 40 Ind. 353. See § 6447. 

Sec. 6271, Property taxable. 3. All property within the juris- 
diction of this State, not expressly exempted, shall be subject to 
taxation. (3.) 

I. The word ^^ residing,''^ in the act of 1881, had reference to a fixed and per- 
manent domicile, and not to a temporary or transitory residence. Thus a person 
having for many years, prior to August, 1870, a domicile in this State, owning 
at his place of domicile a dwelling-house, rented such house, with its furniture, 
for an indefinite time, three months' notice being required to terminate the 
lease, and, with his family, went to Europe, with the intention of ceasing to 
become a resident of this State for an indefinite time, but with the expectation 
of again becoming a citizen of Indiana at some indefinite time in the future, in 
probably two or three years In November, 1872, he, with his family, returned 
from Europe, where they had lived in the meantime, to Indiana-^ and resumed 
possession of the dwelling-house, and continued there to reside. It was held 
that he was taxable for the years 1S71 and 1S72,, as a person " residing in thii? 
State," 52 Ind. 361. ' 



§ 6272] TAXATION. [_7^^ 

2. This gection is constitutio7ial, 14 Ind. 354. Concerning property in 
transitu^ see § 6292. Personal property dcfncd^ § 6273. Realty defined^ § 6272. 

3. Notes and choses in action placed in the hands of an attorney in this 
State for collection simply, and municipal bonds placed temporarily on deposit 
in a bank in this State, merely ibr safe-keeping, and belonging to a bona fide. 
resident of another State, are not liable for taxation. So such property belong- 
ing to and in possession of a resident of another State, who is traveling through 
or temporarily sojourning in this State, is not liable to taxation, 59 Ind. 472. 

Sec. 6272. Eealty and personalty defined. 4. For the purpose 
of taxation, real property shall include all lands within the State, 
and all buildings and fixtures thereon and appurtenances thereto, 
except in cases otherwise expressly provided by law; personal 
property shall include all goods and chattels within the State, all 
ships, boats and vessels belonging to inhabitants of this State, 
whether at home or abroad, and their appurtenances ; all goods, 
chattels and effects belonging to inhabitants of this State, situate 
without this State, except the property actually and permanently 
invested in business in another State shall not be included ; all 
indebtedness due to inhabitants of this State above the amounts 
respectively owed by them, whether such indebtedness is due from 
individuals or from corporations, public or private, and whether 
such debtors reside within or without the State ; all shares in cor- 
porations organized under the laws of this State, when the prop- 
erty of such corporation is not exempt or is not taxable to the 
corporation itself; all shares in banks organized in this State under 
any law of the United States, but in estimating the value of such 
shares, deduction shall be made of the value of all real estate taxed 
to the bank; all shares in foreign corporations, except national 
banks, owned by inhabitants of this State ; all moneys ; all annu- 
ities, and royalties ; all interests owned by individuals in lands the 
fee of which is in this State or in the United States, except as 
hereinafter provided. Property exempted from taxation by the 
laws of the United States shall not be included. Shares in cor- 
porations, all the property of which is taxable to the corporation 
itself, shall not be assessed to the shareholder. Lands sold by the 
State, including lands forfeited to the sinking fund, university fund, 
and all other trust funds, though not granted or conveyed, shall 
be assessed in the same manner as if actually conveyed. All lands 
reserved to or for any individual by any treaty between the United 
States and any Indian tribe or nation shall be liable to taxation 
from the time such treaty shall have been confirmed. (4.) 

1. This section is constitutional, 14 Ind. 354. It does not apply to the stock 
of a foreign corporation, 47 Ind. 511; unless owned by a citizen of this State, 79 
Ind. 351. "Money at interest," as used here, does not mean accounts and 
choses in action drawing interest, but money loaned, 107 Ind. p. 212. Shares of 
stock are personal property, 79 Ind. 351. The word "credits" is such as the 
law recognizes and enforces, in existence on April i, but not such as is created 
after that date, 33 Ind. 386. 

2. Formerly the title of the mortgagor to land hy him mortgaged to the 
commissioners of the sirihing fiend to secure a loan and sold by them, vested in 



yGyl EXEMPTIONS. [% OzyG 

the purchaser freed from all assessments and taxes made or levied between the 
date of the mortgage and the date of the deed, i Ind. 128. This is where they 
were bid in bv the State and resold; but if bid in by a stranger he took them 
subject to the assessments and taxes, 24 Ind. 255. School lands, § 6519 ; 53 Ind. 
60; 57 Ind. 96; 58 Ind. 244; 49 Ind. 272. 

3. Former decisions o;i Indian lands^ 5 B.409; 36 Ind. 310. This section is 
valid, and any one claiming that lands of this character are exempt from taxa- 
tion must affirmatively show it, 63 Ind. 497. 



ARTICLE 2— WHAT EXEMPTED. l 

SEC. SEC. 

6276. Public, educational, and religious 6278^. Legacies exempt from taxation. 

property. 62781^'. Miami Tribe of Indians. 

627S. EndoAvments of colleges, etc. 627SC. Action to quiet title. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6276. Public, educational, and religious property. 5. The 

follov/ing property shall be exempt from taxation : 

First. The property of the United States and of this State. - 
Second. The property of any county, city or town, or town- 
ship. 

Third. All lands granted for the use of the common schools, 
so long as the same shall remain unsold. 

FouHJi. The personal property and real estate of every manual 
labor school or college incorporated within this State, when used 
or occupied for the purpose for which it was incorporated ; such 
real estate not to exceed three hundred and twenty acres. 

Fifth. Every building used and set apart for educational, liter- 
ary, scientific, or charitable purposes, by any institution, or by any 
individual or individuals, association, or incorporation, or used for 
the same purpose by any town, township, city, or county, and the 
tract of land on which such building is situate, also the lands pur- 
chased with the bona fide intention of erecting buildings for such 
use thereon, not exceeding forty acres; also the personal property, 
endowment funds, and interest thereon, belonging to any institu- 
tion, town, township, city, or county, and connected with, used, or 
set apart for any of the purposes aforesaid. 

Sixth. Every building used for religious worship, and the pews 
and furniture within the same, and also the parsonage attached 
thereto and occupied as such, and the land whereon such building 
or buildings are situated, not exceeding ten acres, when owned by 
a church, or religious society, or in trust for its use ; also every 
cemetery. (8.) 

1. Church property exempt from state and county taxes is also exempt 
from municipal taxes, but may be liable for assessments for street improve- 
ments and sewers, when so made by statute, 36 Ind. 33S; § 193. 

2. A parsonage erected for the convenience and accommodation of the 
pastor of a church was formerly not exempt from taxation, 38 Ind. 3. 

3. Exemptions from taxation are to be strictly construed^ S Ind. 32S ; 3S 
Ind. 3; 18 Ind. 33. Perhaps a more liberal construction would be required in 
favor of literary and scientific institutions, 25 Ind. 518; § 193. 



§§ 62/8 62/8^] TAXATION. . [768 

4. The v\-ord '" institution^'' in the fifth specification, means a permanent 
establishment, as contradistinguished from an enterprise of a temporary char- 
acter, 24 Ind. 391. 

5. The exemption of the ten acres is not intended to include any part of the 
land which is diverted to secular use for gain, 4 Ind. 86. 

6. A former law giving an exemption to unmarried females was held un- 
constitutional, 69 Ind. 375; 75 Ind. 309. 

7. Formerly lands purchased of the United States were exempt for five 
years from date of purchase, 20 Ind. 416; 5 McLean, 385. 

8. The legislature has the power to exempt certain property from munic- 
ipal taxation, 40 Ind. 491 ; 11 Ind. 139; 27 Ind. 332; 17 Ind. 48; 3 Ind. 43; 6 B. 
349; 7 B.395. 

9. Greejibacks, or legal tender notes, are exempt from taxation, 59 Ind. 460 ; 
55 Ind. 433; 32 Ind. 27; so United States bonds, 21 Ind. 261; 27 Ind. 338. 

10. A private hoarding scliool, whether incorporated or not, is not exempt, 
8 Ind. 32S ; but see 24 Ind. 371. Masonic building- held exempt though part of 
it is rented out, 25 Ind. 518. 

11. The property of the state board of agriculture is exempt from taxation, 
R. S. 18S1, § 2622. 

[1S81 S., p. 481. Approved and in force April 15, 1881.] 

Sec. 6278. Endowments of colleges, etc. i. No taxes shall be 
assessed or collected for the year 1880, or for any preceding year, 
under any provision of the act approved December 21, 1872, en- 
titled "An act for the uniform assessment of property, and for the 
return of taxes thereon"; on the endowment funds of any literary, 
scientific, benevolent, or charitable institution, whose building and 
personal property are exempted from taxation by the seventh sec- 
tion of said act, nor upon any income or profits arising therefrom 
for the use and benefit of said institution; but all such endowment 
funds, and all interest and profit thence arising, shall be deemed 
and taken to have been exempted from taxation from and after 
the passage of said act. 

See § 193. 

[1883, p. 47. Approved and in force February 27, 1883.] 

Sec. 6278(3;. Bequest, when exempt from taxation, i. When any 
literary, scientific, benevolent, or charitable institution is the spe- 
cific or residuary legatee of any devise or bequest, any money or 
choses in action going to or belonging to any of said institutions, 
shall not, while the same was in the hands of the executors, be 
liable to taxation, and no taxes shall be collected thereon for the 
year 1881, or any preceding year, but the same shall be taken and 
deemed to have been exempt from taxation. [El. Sup. § 2103.] 

See § 3072. 

[1891, p. 115. Approved and in force March 5, 1891.] 

Sec. 6278(5. Miami tribe of Indians, i. It shall be unlawful 
for any state, county or municipal officer to assess, place upon any 
tax duplicate, advertise or offer for sale, or sell for purported as- 
sessments thereon, any land in Indiana included within a grant to 



769] WHEN ASSESSED. [§g 62/8^, 628O 

any member of the Miami tribe of Indians, made by the United 
States under a treaty with such tribe from lands in such treaty 
ceded by said tribe : Provided, The then owner of such land is not 
a citizen of the United States and is a descendant or member of 
the family of such grantee, and that such grantee was, by treaty 
between the United States and such tribe, permitted to remain 
with his family in Indiana when said tribe removed from the State, 
and that such owner or his ancestors subsequent to the removal of 
said tribe from Indiana was, in said State, enumerated and paic 
by the United States as a member of said tribe, and that such 
lands have not been in the adverse possession of any person not a 
member of said tribe and descendant of said original grantee under 
a conveyance executed by such an owner. 

Sec. 6278^. Action to quiet title. 2. Whenever such land so 
ovv^ned has been or may be assessed or placed upon any tax dupli- 
cate for taxation, any such owner or owners or their assigns may 
institute suit in the circuit court of the county, wherein such land 
is found, against the board of commissioners, auditor and treasurer 
of such county to relieve such land from the cloud on the title 
thereto created, while so owned, by such assessment or placing 
the same on any tax duplicate, and by any purported sale thereof 
based thereon; and such court shall, upon complaint containing 
facts establishing the existence of all the conditions in section one 
of this act set forth as to character of lands therein described and 
ownership thereof, have jurisdiction to finally determine the rights- 
of the State of Indiana, and any public corporation therein as well 
as of any person properly made defendant in such suit, and render 
judgment accordingly in favor of plaintiff if such complaint be 
true: Pi'ovided, This act shall not affect any suit now docketed in 
any court in this State. 



ARTICLE 3— WHEN ASSESSED. 

SEC. SEC. 

6280. Chattels, from April first to June. 6282. Executors and administrators. 

6281. Owner on April first liable. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6280. Chattels, from April first to June. 8. Personal prop- 
erty shall be listed for taxation between the first day of April and 
the first day of June, each year; and, with reference to the quan- 
tity and quality held or owned, on the first day of April in the 
year for which the property is required to be listed, (n.) 

Property coming into existence after April i, and before the owner thereof 
is assessed, can not be listed for that year, 17 Ind. 48; 48 Ind. 56S. Formerly 
property within a cit}- was listed on and after June i ; but the fact that property 
was listed in the country after April i, and then, before June i, the owner 
moved into a city, did not prevent the city assessing him with such property for 
that year for city taxes, 55 Ind. 210. 

49 



§§ 6281 6290] TAXATION. [770 

Sec. 6281. Owner on April first liable. 9. The person purchasing 
or acquiring property, whether real or personal, on the first day 
of April in any year shall be considered as the owner on that day, 
and shall be assessed and liable for the taxes of that year. (12.) 

1. As to a valid transfer of real property for taxation and personal liability 
for the tax, see 71 Ind. 281. 

2. No contract by which a liability is created after April first can relate 
back so as to make the creditor liable to be taxed for that year for such de- 
mand, 33 Ind. 386. 

Sec. 6282. Executors and administrators. 10. If a person die 
after the first day of April, without having given in the amount 
of his taxables, his executor or administrator, heir-at-law, or other 
person having charge thereof, shall give in the same as though such 
property had been in his possession on the first day of April of 
such year. (13.) 

ARTICLE 5— WHERE ASSESSED. . 

SEC. SEC. 

6290. Personalty in township— Exception. 6295. Gas, water, and hydraulic companies. 

6291. Corporate property. 6296. Road and bridge companies. 
629irt. Copartnership, 6297. Principal and agent. 

6292. Property in traiisitu. 6298. Person removing. 

6293. Water craft. 629Sa. Realty — Fiduciaries. 

6294. Banks — Brokers — Stock-jobbers, etc. 

[1891, p. 199= Approved and in force March 6, 1S91.] 

Sec. 6290. Personalty in township — Exception. 1 1. All personal 
property shall be assessed to the owner in the township, town or 
city, of which he is an inhabitant on the first day of April of the 
year for which the assessment is made, with the following excep- 
tions: (21.) 

First. All goods and chatties situated in some township, town 
or city, other than where the owner resides, shall be assessed in 
the township, town or city where situated, and not elsewhere if 
the owper or person having control thereof hires or occupies a 
store, mill, dock yard, piling ground, place for sale of property, 
shop, office, mine, farm, place of storage, manufactory or ware- 
house therein, for use in connection with such goods and chattels : 
Piwided, That the procuring any such property to be manufac- 
tured upon contract, shall be deemed the hiring of a mill or man- 
ufactory, within the meaning of this section. (16.) 

Second. All animals kept throughout the year in some town- 
ship, town or city other than where the owner resides, shall be 
assessed to such owner, or the person in possession in the town- 
ship, town or city where kept. 

Third. All shares in banks shall be assessed to their owners in 
the city or town where the bank is located. 

FouHh, Personal property of non-residents of the State shall be 
assessed to the owner or to the person having the control thereof 



// 



l] ' WHERE ASSESSED. [§ 629O 



In the township, town or city where the same may be, except that 
where such property is in transit to some place within the State, it 
shall be assessed in such place. 

Fifth. The personal property of minors under guardian shall 
be assessed to the guardian in the township, town or city where 
the guardian resides, but shall not be assessed or taxed for city or 
town purposes unless the ward reside in such city or town, and the 
personal property of every other person under guardianship shall 
be assessed to the guardian in the township, town or city v/here 
the ward resides. 

Sixth. The personal property of the estates of deceased persons, 
in the hands of executors, administrators or other persons shall be 
assessed to the persons in charge of such property in the township, 
town or city where the deceased last dwelt, until such property 
has been distributed to the heirs or other persons entitled thereto. 
If such decedent was a non-resident of the State, such property 
shall be assessed in the township, town or city where situated. 

Seventh. Personal property under the control of a trustee or 
agent, whether a corporation or natural person, may be assessed 
to such trustee or agent, except as otherwise by law provided in 
the township, town, or city in which such trustee or agent resides. 

Eighth, All personal property of any person situate upon, also 
all buildings situate and being upon the land of the United States, 
or of this State, or upon the lands of any county, township, town, 
or city, shall be deemed personal property for purposes of taxation 
and assessment, and shall be assessed as personal property to the 
owner or occupant thereof, in the township, town or city, to which 
said lands belong or of which they form a part, and such buildings 
shall be subject to sale for taxes in the same manner as herein pro- 
vided for personal property : Provided, however, It shall not be 
necessary to remove such buildings for the purpose of sale. 

1. See §§ 6443, 6445, 6282, and 3264. The personal property of a ivard 
residing outside of a city or town, in the possession and under the control of 
his guardian residing in the city, is liable to taxation by the city ; but the g-aar- 
dian is not personallj^ liable for the taxes due thereon, 23 Ind. 423. Refunding, 
91 Ind. 528. Choses in action held by an administrator living within a city 
whose decedent lived and died without it can not be taxed by such city, 83 Ind. 
211. 

2. The situs of shares of stock in a company, for the purpose of taxation, 
is the domicile of the owner, 14 Ind. 27; 15 Ind. 150; 11 Ind. 139; even of for- 
eign companies, 79 Ind. 351. The fact that foreign stock is taxable in another 
State does not exempt it from taxation here, 79 Ind. 351; 11 R. I. 321; 49 Pa. 
St. 519. Bonds of non-residents, § 6271, note 3, and § 6287, note 2. 

3. The capital stock can not be assessed both at the place of the bank and 
the place where the owners thereof reside, 33 Ind. 107, iii. 

4. A share of the part-owner of a steamboat running on the Ohio river, 
and occasionally touching at a city in the course of the voyages, is not liable to 
be taxed in such city merely from the fact that such part-owner is a resident 
citizen of that city, 3 Ind. 481; but see § 6293, note. Hogs slaughtered, packed 
ready for shipment, in this State, by a non-resident, may be listed and taxed in 
this State in the township where situated on April i, 27 Ind. 288. A peison 



§§ 6291 — 6292] TAXATION. [772 

residing in a town of this State can not be taxed by the town w-ith his personal 
property situate outside such town, gz Ind. 222. See 72 Ind. 285, and § 6292, 
uo^e. 

Sec. 6291. Corporate property. 12. All corporate property, 
including capital stock and franchises, except where some other 
provision is made by law, shall be assessed to the corporation as 
to a natural person in the name of the corporation. The place 
where its principal office in this State is situated shall be deemed 
its residence, but if there be no principal office in the State then 
such property shall be listed and taxed at any place in the State 
where the corporation transacts business. (22.) 

I. The word "stock" did not formerly mean the subscriptions to stock, 
"but the actual tangible property" of the company, 5 Ind. 310. A tax, how- 
ever, assessed on the capital-stock of a corporation is a tax on the propert}^ of 
which such capital is composed, 23 Ind. 331. The fact that a stockholder 
resides in another county does not render this section invalid, 33 Ind. 107. See 
no Ind. II. The actual value of stock, in all cases, must be the criterion of 
value, 23 Ind. 331. See 26 N. E. Rep. 672. 

Sec. 62Qla. Co-partnership. 13. For the purposes of assess- 
ing property and collecting taxes, a co-partnership shall be treated 
as an individual, and whenever the name of the owner or occupant 
of property is required to be entered upon the tax duplicate, if 
such property is owned or occupied by a co-partnership, the firm 
name may be used. A co-partnership shall be deemed to reside 
in the township, town or city where its business is principally car- 
ried on. Each partner shall be liable for the whole tax. 

A partner sold his interest in the partnership goods to his co-partner, 
and received his note in payment. Afterward, to prevent a seizure of those 
goods for taxes, which were a lien on the entire stock when the sale took place, 
the purchaser paid off the amount of these taxes. In an action against him on 
the purchase note he was allow^ed to set off against it the amount of taxes paid 
by him, 35 Ind. 527. 

Sec. 6292. Property in transitu. 14. Personal property m tra7i' 
situ shall be listed and assessed in the township, town or city, 
where the owner resides : Provided, That if such property is in- 
tended for a particular business, it shall be listed and assessed at 
the place where the property of such business is required to be 
hsted. (23.) 

1. Staves .purchased by a citizen of another State, remaining in this State to 
receive a finishing process before shipment to another State are taxable in this 
State; and a law taxing such property is valid, 96 Ind. 179; S. C.49 Am. R. 
159; 33 La Ann. 843; 21 Ohio St. 605^27 Ind. 288; 21 Ind. 335; 73 111. 125; 7 
Fed. Rep. 745; 106 Ind. 302. But personal property of a non-resident of this 
State, at a railroad station, and awaiting shipment to the residence of the owner, 
has no permanent situs here, and ie not taxable in this State, 89 Ind. i ; 106 Ind. 
302; 7 Nev. 336; 30N.J.L.42S, 23N.Y.224; 57 Ala. 61, S. C. 29 Am. Rep. 
712; 33 la. 376, S. C. 9 Am. R. 132; 12 Rep. 196; 59 Ind. 472, 26 Am. R. 87. 

2. Cattle brought into a county for pasturage is there taxable, 35 Ind. 2S2; 
57 Tex. 395. Hogs purchased and packed in a city for shipment, owned by a 
non-resident, are there taxable, 27 Ind. 288; 21 Ind. 334; but the money invested 
in such pork can not be taxed under the head of" produce for export," 24 Ind. 425 



773] WHERE ASSESSED. [§§ 6293 6297 

(overruling iS Ind. 33). Where a person residing in a town of this State has 
his personal property elsewhere, such town can not tax it, and the collection 
of the tax will be enjoined, 92 Ind. 222. See §§ 6312, 6313. 

Sec. 6293. Water craft. 15. All persons, companies and cor- 
porations in this State owning or controlling steamboats, sailing 
vessels, wharf-boats, barges and other water craft, shall be re- 
quired to list the same for assessment and taxation in the county, 
township, town or city in which the same may belong, or be en- 
rolled, licensed or registered, or kept when not enrolled, licensed 
or registered. (24.) 

Previous to 1S89 water craft was listed at the residence of the owner. See 
106 Ind. 170. 

Sec. 6294. Banks — Brokers— Stock-jobbers, etc. 16. The per- 
sonal property of banks or bankers, corporate or unincorporated, 
brokers, stock-jobbers, insurance companies, hotels, livery stables, 
saloons, eating houses, ferries and mining companies, and all com- 
panies except companies specially provided for in this act, shall be 
listed and assessed in the township, town or city where such per- 
sonal property is situated. (25.) 

Sec. 6295. Gas, water, and hydraulic companies. 17. The per- 
sonal property of gas and coke companies, natural gas companies, 
electric light companies, water-works companies, and hydraulic 
companies shall be listed and assessed in the tov/nship, town or 
city where the principal works are located ; the mains, pipes and 
wires of such companies laid in or along roads, streets or alleys 
shall be listed as personal property in the township, city or town 
where the same are laid or placed. (26.) 

Sec. 6296. Road and bridge companies. i8. The personal prop- 
erty of street-railroad, plank-road, gravel-road, turnpike, or bridge 
companies shall be listed and assessed in the township, city, or 
town where the principal place of business is located. The track, 
road, or bridge of such company shall be held to be personal 
property, and shall be listed and assessed in the township, town, 
or city where the same is located or laid. (27.) 

Sec. 6297. Principal and agent. 19. Persons required to list 
property on behalf of others shall list it separately from their own, 
specifying, in such case, the name of the person, estate, company, 
or corporation to whom it belongs. (28.) 

1. If an agent fails to list property in the name lof his principal it may be 
listed in his (the agent's) name, 27 Ind. 2SS. If a deed of trust shows on its 
face that it is such, the trustee is not personally liable for the taxes due on the 
trust property; but if it does not so show the trust, he is liable, 6S Ind. 500. 

2. Notes and cJioscs in action belonging to a bo7ia fdc non-resident of Indi- 
ana, placed in the hands of a resident attorney for safe-keeping and collection 
simply, and municipal bonds of such non-resident, placed temporarily in a 
bank "for safe-keeping, are not liable to taxation, 59 Ind. 472. 



g§ 6298, 6298^] TAXATION. [774 

3. All debts, of every kind and nature, due to persons having a domicile in 
this State are taxable to him where he has his domicile; but if due to a person 
not having a domicile here on April i, unless /;/ the hands of an agent doing 
business in this State, from which such debts springs have no situs here, but 
have a situs where the creditor has his domicile, and are not taxable in this 
State, 68 Ind. 247. 

Sec. 6298. Person removing — Doubts, how settled. 20. The 

personal property of persons removing from one county, township, 
town or city to another, between the first day of April and the 
first day of June, in any year, shall be listed and assessed in either 
place in which the owner is first called upon by the assessor. The 
owner of personal property moving into this State from another 
State, between the first day of April and the first day of June, in 
any year, shall be listed for his poll and the property owned by 
him on the first day of April of such year, in the county, town- 
ship, town or city into which he has so removed : Provided, That 
if such person has been assessed, and shall make it appear to the 
assessor by the certificate of the proper authority in the place of 
his former residence, that he is held for tax for the current year in 
such former place of residence, he shall not again be assessed for 
such year. In case of doubt as to the proper place to assess per- 
sonal property, if the doubt arises as to different townships in the 
county, the auditor shall determine the place; and if the doubt 
arises as to different counties, the auditor of state shall determine, 
such determination shall be summary and final. (29.) 

1. The fact that the owner of personalty had been assessed on the first day 
of April for state and county purposes will not prevent his being assessed upon 
the very same property for city purposes, if he afterward, and before the first 
day of June, remove into a city of the same county, 55 Ind. 210. 

2. All residents of a township on April i, or at any time between that day 
and June i, the time when the assessor is required to complete his assessments 
(§ 6385), are taxable in that township for their moneys and credits owned on 
April I, except such as have become residents subsequent to the last-named 
date, and have been assessed, and are held for tax upon such monej^s and credits 
in the taxing districts from which they have moved, 108 Ind. 353. * 



Sec. 6298^. Realty — Fiduciaries. 21. Real property shall be 
assessed in the place where situated, and to the owner, if known; 
if not, then to the occupant, if any ; and if there be no occupant, 
then as unknown. Property in the control of an executor, admin- 
istrator, guardian or trustee shall be assessed to such executor, 
administrator, guardian or trustee. 



775] DEFINITIONS AND RULEC. [§§ 63OO 63O9 



ARTICLE 6— DEFINITIONS AND RULES. 



6300. Proceeds of sale of exempt realty. 6327. Description of personalty. 

6301. Nursery stock. 6328. Aifidavit of taxless persons. 

6302. Deeds held as security. 6329. " Person " defined. 

6303. Franchises. 6329^. Dogs. 

6304. Interest on exempt security. 6^2gb. Dogs listed — Rate of taxation. 

6309. Chattels mortgaged or pledged. 6329c. Assessor liable to a fine. 

6310. Real estate mortgaged. 6329J. Oath of assessed persons. 

6312. iSIerchants — Consignees. 6329^'. Sheep-kiUing dogs. 

6313. Manufacturers. 6329/. Injury to killing or stealing listed dog. 

6314. Transient persons. 6329^. Township trustee custodian of fund. 

6315. Engines and machinery. 6329/;. Owner's statement of sheep killed. 

6316. Pawnbrokers. 63292'. Payment of loss. 

6317. Books and papers — Official inspection. 6329;. Repeal of act of 1881, 
631S. Leasehold estate. 6329/I'. Registration. 

6319. Public lands. 6329/. Runabout dog. 

6320. Wabash and Erie canal. 6329;;?. Injuring or killing dog. 

6321. Undivided realty. 6329«. Misdemeanor to harbor unregistered 

6322. Partition — Transfer. dog. 

6322(7. ^Vhere clerk makes transcript for tax- 63290. Grand jury investigates, 

ation and title. 6329/, Dog fund. 

6323. Ow-ner or occupant. 6329^. Claims for damages. 

6324. Rule, when township line divides. 6329;-. Assessing. 

6325. Description of realty. 63295. Repealing clause. 

6326. Lots and subdivisions. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6300. Proceeds of sale of exempt realty. 22. When real 
estate is exempt from taxation in the hands of the holder of the 
fee, and the same is contracted to be sold, the amount paid thereon 
by the purchaser, with the value of the improvements thereon, until 
the fee is conveyed, shall be held to be personal property, and be 
listed and assessed as such, in the place where the land is situated. 

(31.) 

Sec. 6301. Nursery stock. 23. The stock of nurseries, grow- 
ing or otherwise, in the hands of nurserymen, shall be listed and 
assessed as merchandise. (32.) 

Sec. 6302. Deeds lield as security. 24. When the deed for 
real estate is held for the payment of a sum of money, such sum, 
so secured, shall be held to be personal property, and shall be 
listed and assessed as credits. (33-) 

Sec. 6303. Franchises. 25. Every franchise granted by any 
law of this State, owned or used by any person or corporation, 
and every franchise or privilege used or enjoyed by any person or 
corporation shall be listed and assessed as personal property. (34.) 

Sec. 6304. Interest on exempt security. 26. Where bonds or 
stocks are now, or may hereafter be, exempted from taxation, the 
accrued interest on such bonds or dividends on such stock shall be 
listed and assessed, unless otherwise exempted, without regard to 
the time when the same is to be paid. (35-) 

Sec. 6309. Chattels mortgaged or pledged. 27. When personal 
property is mortgaged or pledged, it shall, for the purpose of tax- 



§§ 63 lo— 63 1 3j TAXATION. Ij'je 

ation, be deemed the property of the person who has the same in 
possession. (40.) 

Sec. 6310. Real estate mortgaged. 28. In cases of mortgaged 
real estate, the mortgagor shall, for the purpose of taxation, be 
deemed the owner until the mortgagee shall have taken possession 
of the mortgaged premises — after which, the mortgagee shall be 
deemed the owner. (41.) 

A crop of corn planted by the heirs after the death of the mortgagor, who 
died after foreclosure and sale, and which crop matured before the expiration 
of the year of redemption, is not liable for the payment of taxes charged against 
the mortgagor, 52 Ind. 233. 

Sec. 6312. Merchants — Consignees. 29. Every person who shall 
own or have in possession, or subject to his control, any personal 
property within this State, with authority to sell the same, which 
shall have been purchased either in or out of this State, with a 
view of being sold at an advanced price or profit ; or which shall 
have been consigned to him from any place out of this State, for 
the purpose of being sold at any place within this State, — shall be 
held to be a merchant; and at any time when he shall be, in pur- 
suance of this act, required to make out and deliver to the assessor 
a statement of his other personal property, he shall, in like manner, 
make a statement of, and list as merchandise, all property held or 
owned by him appertaining to his business as a merchant, and, in 
addition thereto, attest, on oath^or affirmation, the true cash value 
of all such property, appertaining to his business as a merchant, 
including, with amount on hand, in actual possession, all amounts 
purchased with a view to possession or profit. (43.) 

See § 6292, notes. 

Sec. 6313. Manufacturers. 30. Every person who shall purchase, 
receive, or hold personal property of any description for the pur- 
pose of adding to the value thereof by any process of manufactur- 
ing, refining, rectifying, or by the combination of different materials, 
with a view of making a gain or profit by so doing, shall be held 
to be a manufacturer ; and he shall at all times when, by virtue of 
this act, he is required to, make and deliver to the assessor a state- 
ment of the amount or value of his other personal property subject 
to taxation, also, in like manner, state the value estimated (as pro- 
vided in the preceding section) of all articles purchased, received, or 
otherwise held for the purpose of being used, in whole or in part, 
in any process or operation of manufacturing, combining, rectify- 
ing, or refining, including the value of all manufactured articles on 
hand, in actual possession or elsewhere held for sale, and, in addi- 
tion thereto, attest, on oath, the true cash value of all such property 
appertaining to his business as a manufacturer, including manufac- 
tured articles. (44. ) 



'J'J'j\ DEFINITIONS AND RULES. [§§ 63 1 4 63 1 / 

Sec. 6314. Transient persons. 31. Whenever, at any time during 
any year, any transient person shall locate in any township, city, 
town, or village, and shall offer to sell or otherwise dispose of any 
books or other goods, wares, or merchandise, under the name of a 
gift book-store or any other name or designation, it shall be the 
duty of the proper assessor for the time being of the place where 
such person shall locate, forthwith to call upon such person, and 
demand of him the true value, in money, of all his stock in trade ; 
and in case such person shall neglect or refuse to return the same, 
under oath, within twenty-four hours after such demand, then it 
shall be the duty of said assessor to determine the same as in other 
cases; and, in either case, he shall forthwith, return such valuation 
to the auditor of the county, who shall cause the same to be entered 
at once on the tax duplicate, and collected immediately. (45.) 

Sec, 6315. Engines and machinery. 32. Every person owning 
a m.anufacturing estabhshment of any kind, and every manufac- 
turer, shall list, as a part of his personal property, the value of all 
engines and machinery of every description, used or designed to be 
used in any process of refining or manufacturing (except such 
fixtures as shall have been considered as a part of any tract or real 
property), including all the tools and implements of every kind 
used for the purpose aforesaid. (46.) 

Sec. 6316. Pawnbrokers. 33. Every person or company en- 
gaged in the business of receiving property in pledge, or as security 
for money or other thing advanced to the pawner or pledger, shall 
be held to be a pawnbroker, and shall, at the time required by this 
act, return, under oath, the value of all property pledged and held 
by him as a pawnbroker, on hand on the first day of April annu- 
ally ; and taxes shall be charged upon the true cash value of such 
property to such paw^nbroker, the same as other property. (47.) 

Sec. 6317. Books and papers — Official inspection. 34. For the 

purpose of properly listing and assessing property for taxation, 
and equalizing, and collecting tax.es, the township assessor, county 
assessor, county auditor, auditor of state, and boards of review and 
board of tax commissioners, shall each have the right to inspect 
and examine the records of all public offices, and the books and 
papers of all corporations and tax-payers in this State, without 
charges; and they shall also have power to administer all neces- 
sary oaths or affirmation in the discharge of their duties ; and it 
shall be the duty of all assessors and all other officers charged with 
the duty of listing property for taxation, or charged Vv'ith the 
duty of collecting taxes, to give, in writing, all information they 
may acquire in reference to the concealment of property from taxa- 
tion by any person or corporation before mentioned to the county 
auditor, auditor of state, or boards of review or tax commis- 
sioners. (48.) 



§§6318—6321] TAXATION. [778 

The county board of review has power to examine witnesses. Each member 
thereof may administer oaths, and perjury committed before the board may be 
made the basis of a criminal prosecution, no Ind. 82. 

Sec. 6318. Leasehold estate. 35. When real estate which is 
exempt from taxation is leased to another whose property is not 
exempt, and the leasing of which does not make the real estate 
taxable, the leasehold estate and the appurtenances shall be listed, 
as the property of the lessee thereof, or his assignee, as real estate. 

(49-) 

Sec. 6319. Public lands. 36. Government lands, canal lands, 
university and school lands, purchased prior to the first day of 
April, shall be taxable for that year, and annually thereafter. All 
school lands heretofore or hereafter sold shall be taxable from and 
after the sale and delivery of the certificate. (50.) 

Formerly canal lands were exempt, 8 B. 352. 

Sec. 6320. Wabash and Erie canal 37. All miUs, manufactories, 
warehouses, and other structures, with appurtenances and fixtures, 
erected or placed upon any lands leased by the board of trustees 
of the Wabash and Erie canal, shall be assessed to the lessees of 
such lands or their assigns, in possession of and occupying the 
same ; but the lands or lots on which such mills, manufactories, 
warehouses, or other structures are situate shall be assessed to the 
owners thereof, and all locks, Jands, dams, feeders, mill-sites, and 
water-power, and canal bed, with land appurtenant thereto, shall 
be assessed to the owners of said Wabash and Erie canal ; and for 
the purpose of valuation, the entire property in any township shall 
be considered as an entirety, and shall be described in the assess- 
ment and in the tax duplicate as "The Wabash and Erie canal." 
All the above described property shall be taxable from and after 
the sale of said property under the decree of the United States 
Circuit Court, in the case of Thomas K. Gapen vs. Thomas'Dow- 
ling et al. Nothing herein contained shall, in any way, prevent or 
interfere with the assessment of so much of said property as may 
He in any city or town, by the, city or town authorities, for taxa- 
tion for municipal purposes. (51.) 

This section is constitutional, 8 B. 352. 

Sec. 6321. Undivided realty. 38. The undivided real estate of any 
deceased person not in control of an executor or administrator, 
may be listed to the heirs or devisees of such person, without 
designating any of the heirs or devisees by name, until they shall 
have given notice to the auditor of the county or counties in which 
such real estate is situated- of the division of the same, and the 
names of the several heirs or devisees, and the proportions allotted 
to each ; and each heir or devisee shall be liable for the whole of 
such tax, and shall have a right to recover of the other heirs or 



J'jg^ DErix:T.o:,s /.,ND RULES. [§§6322, 6322^^ 

devisees their respective proportions thereof, when paid by him, 
and interest thereon ; and the hen for the proportion of taxes paid 
on the different shares of the land shah vest in the person who 
pays the taxes. (52.) 

Unless the owners take the proper steps to show the separate interest o^ 
each, the land is liable for the tax of each owner, and the tax lien may be fore- 
closed and a sale of the entire tract ordered, 84 Ind. 342. One to whom land 
has descended jointly with other heirs, may pay the taxes upon the entire tract 
and enforce contribution from the other ^enants in common, 114 Ind. 273; 8 
Mich. 263. Redemption, see § 6474. 

Sec. 6322. Partition — Transfer. 39. Whenever a division or par- 
tition has been made, or other changes take place in the ownership 
of any tract or lot of land or any part thereof, by conveyance, sale, 
devise, or descent, the county auditor, on being satisfied thereof, 
shall transfer the same on the last appraisement list, and apportion 
the same and the valuation thereof, with all delinquent taxes, to 
the several owners. (53-) 

1. See § 6423. 

2. It is not the duty of the county auditor to examine the court records to see 
if partition of land has been made; and an assessment against all the owners 
jointly is not invalid, even though there has been a partition. This is also 
true of city and town taxes, 16 Ind. 506. There can be no valid transfer of real 
property for taxation purposes except upon change of title, and the production 
of evidence thereof to the proper county auditor. Consequently a transfer of 
land conveyed by a parol gift is void, 71 Ind. 281. In a dispute whether there 
has been a parol partition the tax duplicate showing that the lands were taxed to 
the respective persons to whom they were supposed to have been allotted is 
admissible in evidence, as tending to show the partition, 96 Ind. 298. See 
§ 6322(2. 

[1859, p. 160. Approved March 5, 1858, and in force August 6, 1859.] 

Sec 6322^. Wlien clerk makes transcript for taxation and title, i. 

In all actions for partition of real estate in any court of this State, 
and in all other cases where the transfers to the parties entitled 
thereto are made by judgment only, and not by deed, the clerk 
shall make out a transcript of such judgment, showing the transfer 
aforesaid, under his hand and the seal of the court ordering the 
same, and deliver the same to the auditor of the county wherein 
such real estate is situate, who shall forthwith make the proper 
entries upon his transfer-book, and note such transfer, as in other 
cases, upon the back of such transcript, and shall, thereupon, 
deliver the same to the recorder of such county, who shall record 
the same in the record of deeds in his office. And the said clerk, 
auditor, and recorder shall each receive, for such services, from the 
person entitled to said real estate, such fees as they are now, by 
law, entitled to receive for similar services, which shall be taxed 
by the court rendering such judgment as part of the costs of such 
proceedings as may result in the same : Provided, howei'cr, That 
there shall be no more than one transcript of any such judgment 
made out and recorded as aforesaid in any case whatever. [R. S. 

1881, §5853.] 

See 5 6423. 



§§ 6323 6325] TAXATION. [780 

[1891, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6323. Owner or occnpant. 40. Lands occupied by any per- 
son not the owner thereof shall be listed in the name of the owner, 
if known ; otherwise, as the lands of unknown owners. And for 
taxes, if paid by any occupant, he shall have his action against the 
owner and a lien upon such lands, until the same, with interest, is 
repaid to him. (54-) 

The general rule is that the law looks to the legal owner as the party by 
whom the lands in the State are to be listed, and to whom they are to be 
charged for taxation, 28 Ind, 256; 49 Ind. p. 274. See 68 Ind. 500. 

Sec. 6324. Euie, when township line divides. 41. When the lines 
between two townships divide a tract of land surveyed differently 
from the congressional surveys, if listed to the owner thereof (he 
being a, resident of either township in which a part of such tract 
of land may lie), or if listed to the occupant under the preceding 
section of this act, the same shall be listed in the township in 
which such owner or occupant resides ; and in all other cases, the 
same shall be listed in the township in which the greater part 
thereof Hes. (55.) 

Sec. 6325. Description of realty. 42. Whenever the real estate 
to be listed and assessed can not be described by a congressional 
subdivision, or by the number of lot or plat, the same shall be suf- 
ficiently described for the purpose of listing, assessing, collecting 
the tax thereon, and conveying the title thereto (when the same is 
sold for non-payment of taxes), by reference to any sufficient and 
intelligible description of such land or lot in the deed, mortgage, 
will, or other public record of the county, substantially in the fol- 
lowing manner (the number of acres, book and page, and place 
being changed to suit each particular case): ' ' Fifty acres in survey 
No. 158 of Clark's Grant, as described in deed-book 64, page 219, 
of the recorder's office of Clark county." And when no sufficient 
and intelligible description of such real estate can be obtained, for 
such reference, by the assessor or other officer listing such land, 
from the owner or public records of the county, such officer shall 
cause the county surveyor to survey and plat such land, and fur- 
nish him with such description ; and a reference to such descrip- 
tion in such survey, substantially in the following manner, shall be 
sufficient description of such land for the purposes above men- 
tioned: "Fifty acres in survey No. 100 of Clark's Grant, as desig- 
nated on the plat thereof made by the county surveyor, on the 

day of , 18 — . " The costs of such survey shall be 

entered, by the auditor, on the tax duplicate, and collected as a 
part of the tax on said land. It shall be sufficient to describe the 
real property assessed in the manner heretofore in use by initials, 
letters, abbreviations and figures. (56.) 

I. Land was described as follows : "Richardson's heirs, 56 acres in the S. E.- 
quarter of section 8, township 12, range 13," of a certain county. In an action by 



781] DEFINITIONS AND RULES. [§§6326 6328 

the State under an early tax law, to foreclose the tax lien, it ^vas held that the 
description of the land Avas too imperfect to authorize the judgment applied for, 
5 B. 51. But where a tax deed described the land as "seventj-six acres of land, 
being a part of the southeast quarter " of a certain section, the description of 
the land was deemed good, because of the section (§ 6460) requiring the land 
sold for taxes to be laid off in a square form in the northwest corner of the tract 
upon which delinquent taxes are due, 7 Ind. 232. Description by abbreviations 
is sufficient, thus: " S. E. I4' of N. W. ^4 Sec. 18, T. 21, N. R. 7 E. 40 acres," 33 
Ind. 50. 

2. Even if the land is so insufficiently described as not to convey the title on 
a sale of it for taxes, yet the purchaser holding a tax deed based upon such sale 
mav foreclose the lien given him under § 6497, by averring that the description 
used ''was intended to apply to and cover the lands" particularly described in 
the complaint, and upon which it is sought to foreclose the lien, 71 Ind. 244; 
123 Ind. 394; 81 Ind, 180, 294; 60 Ind. 573; 88 Ind. 159 (distinguishing 77 Ind. 
280); 99 Ind. 566; 118 Ind. 323. If the description in a tax deed is such as 
enables a competent person to identify and locate the particular land intended 
to be conveyed, it is sufficient to enable the purchaser to enforce a lien against 
the land for the principal, interest and penalty of the sum paid by him, 81 Ind. 
iSo f and in fact to give him a good title by virtue of his tax deed). 

3. Even a misdescription of the land sold does not destroy the tax lien, 
99 Ind. 352 ; nor an insufficient description, 108 Ind. 174. 

4. And where, in a suit to quiet title, the land in controversy was described on 
the tax duplicate a,s " 120 ft. Washt. St. S. W. cor. out. 66," the county auditor 
and treasurer were permitted to testify that "ft." meant "feet," " Washt. St." 
meant "Washington Street," "S. W. cor." meant "Southwest corner," and "out. 
66 " meant "outlet 66." And in this there was held to be no error, 104 Ind. 578. 
So " The west part of the N. E. N. E. sec. 35, town 23 N. R. 6 E.; 30 acres," is 
good, 94 Ind. 201. 

Sec. 6326. Lots and subdivisions. 43. Whenever any tract of 
land has been platted into lots or subdivisions, the description of 
any such lot or subdivision, by reference to its number on said 
plat and the number or designation of the plat, shall be a good, 
valid, and sufficient description thereof, for the purpose of listing, 
assessing, collecting the tax thereon, and conveying the title there- 
to, when sold for the non-payment of taxes. (S/.) 

Sec. 6327. Description of personalty. 44. In entering personal 
property upon the proper tax books for the purpose of taxation, it 
shall be a sufficient description of the same to use the words ''per- 
sonal property"; and such phrase shall comprehend and embrace 
all species of personal property belonging to the party charged 
therewith on the tax books, and no more specific description or 
designation thereof shall be necessary. (58.) 

Sec. 6328. Affidavit of taxless persons. 45. Any person who, 
being called upon to list property, either on his own account or 
for others, subject to taxation, claims to have none, shall be re- 
quired by the assessor or other proper officer to make oath, in 
writing, to the truth of his claim in that behalf, and proper blank 
forms for such affidavit shall be provided ; and such person shall 
be subject to the pains and penalties of perjury for a false oath. 

(59-) 



§§ 6329 6329^] TAXATION. [yS2 

Sec. 6329. "Person" defined. 46. The word ''person," as used 
in this act, shall be held to include and mean "firm," "com- 
pany," "association," or "corporation." (60.) 

Sec. 6329^. Dogs. 47. The assessor shall list every dog over 
the age of six months within his township to the person owning, 
keeping or harboring the same, and such person shall be charged 
on the duplicate one dollar if a male, and two dollars if a fem.ale 
dog, and the further sum of two dollars for each additional dog, 
beyond one; which amounts so charged shall be carried to tlie 
column of total amounts, and collected as other taxes are collected: 
Provided, That nothing in this act shall be so construed as to repeal 
or modify any of the provisions of an act to provide for the taxation 
of dogs, etc., in force March 7, 1883, and an act to amend section 
8 of said act of March 7, 1883, approved April 8, 1885, both of 
which acts shall remain in full force and effect. 

1. The proviso to this act is construed by the present attorney-general 
(1891) of this State as repealing all that part of the section preceding it. If 
such is the case the act of 1883, as amended in 18S5, is still in force, and so that 
official holds. He also holds that the dog registration act of 1891 is in force, 
equally with the act of 1883; and that the owner of a dog may register under 
the act of 1891 at any time before he is assessed for taxation, al Avhich time, if 
he has not so registered, he must be assessed under the act of 1883. Such being 
the case, we give at length both the acts of 1883 and 1891. 

2. Dogs registered can not be assessed, § 6329r. 

[1883, p. 148. Took effect, without approval, March 7, 1883.] 
Sec. 6329(^. Bogs listed— Rate of taxation, i. The assessors 
of each township within the State shall, between the first day of 
April and the first day of June, in each year, list every dog over 
the age of six months within his township to the persons owning, 
keeping or harboring the same, and such person shall be charged 
on the tax duplicate one dollar, if a dog or spayed female dog, 
and two dollars if a female dog unspayed, and two dollars for 
each additional dog more than one of any kind or sex whatever, 
so owned, kept or harbored by such person, which amount so 
charged shall be carried to the column of total amounts and col- 
lected as other taxes are collected. [El. Sup. §444.] 
This statute is valid, 27 Ind. 62, 120, See § 6329X\ 

Sec. 6329^. Assessor liable to a fine. 2. Every assessor who 
shall fail to use due cllligence in listing any dog owned, kept or 
harbored within his township, between the first day of April and 
the first day of June, in each year, shall be fined in any sum not 
exceeding five dollars for each dog not listed for want of such 
diligence. [El. Sup. § 445.] 

Sec. 6329^. Oath of assessed person. 3. Every person liable 
to taxation in any township within the State, and residing therein 
when listed for taxation, shall make and subscribe an oath, in which 



783] DOGS. [§§ 6329^—6329^ 

shall be stated the number of dogs, male and female, spayed and 
unspayed, over the age of six months, owned, kept, or harbored 
by such person ; and any person who shall make a false statement 
as to the number of such dogs so owned, kept or harbored by 
him, shall, upon conviction, be fined in any sum not exceeding 
one hundred dollars. [El. Sup. § 446.] 

Sec. 6329r. Sheep-killing dogs. 4. An[y] dog that is known 
to kill or maim sheep may be killed by any person, and any per- 
son who shall own, keep or harbor any dog, after he knows that 
such dog has killed or maimed sheep, shall be fined in any sum 
not exceeding fifty dollars. [El. Sup. § 447-] 

Sec. 6329/ Injury to, killing or stealing listed dog. 5. Any 

person v/ho shall mischievously or maliciously injure or kill any 
dog that has been duly listed for taxation, or any person who shall 
steal, take and carry away any dog that has been duly listed for 
taxation according to law, shall be deemed guilty of a misdemeanor, 
and upon conviction shall be fined in any sum not exceeding two 
hundred dollars, to which may be added imprisonment in the 
county jail for any term not exceeding thirty days : Provided, That 
in all cases such dogs are injured or killed while engaged in com- 
mitting damages to the property of any other person than the 
owner of such dogs, or is known to be a dog that will kill or maim 
sheep, the above provisions shall not apply. [El. Sup. § 448.] 

1. See § 6329W. 

2. An act of 1852 (R. S. 1881, § 2646) allowed the killing of all dogs found 
off the premises of their owner, but this act was repealed by the dog-tagging 
law of 1881, and was not revived by this act, 103 Ind. loi. Under this section 
a dog listed for taxation can not be killed except while engaged in committing 
damage to the property of others than its owner, or is known to be a dog 
that will kill or maim sheep. In a prosecution under this statute the value of 
the dog is immaterial, 103 Ind. loi. It is not a larceny to steal an unlisted dog; 
and the thief can not be criminally punished, 79 Ind, 9, although he is civilly 
liable. 

Sec. 6329^. Township trustee custodian of fund. 6. All money 
derived from the taxation of dogs and fines under the provisions 
of this act shall constitute a fund known as a dog fund, and be 
used for the payment of damages sustained by the owners of 
sheep maimed or killed by dogs within any township, and each 
township trustee in this State is required to collect annually the 
taxes and fines of the county treasurer. The several county audi- 
tors shall set apart the amount of such tax collected in each and 
every township, and the county treasurer shall pay the same, with 
fines collected, to the township trustee in whose township the 
dogs were listed or the penalties originated, and said trustee shall 
hold the same for the purpose aforesaid. [El. Sup. § 449.] 

See § 6329/. So far as the above section attempts to make the fines assessed 
under this act a part of the sheep fund, it is unconstitutional. Such fines, under 
the constitution, belong to the school fund, § 1S3. 



§§ 6329/^, 6329/] TAXATION. [784 

Sec. 6329/2. Owner's statement of sKeep killed. 7. The owners 
of sheep killed or maimed by dogs shall, within ten days from the 
time thereof, report to the trustee of the township, under oath, in 
which he shall state the number, age, as he believes, and the value 
of the sheep so killed, and the damages sustained on account 
of the maimed ; and any person who shall make any false state- 
ment of any such matters shall, upon conviction, be fined in any 
sum not exceeding one hundred dollars, to v/hich may be added 
imprisonment in the county jail for any term not exceeding thirty 
days. [EL Sup. § 450.] 



[1885, p. 161. Approved April 8, 1885, and in force July 18, 1885.] 

Sec. 6329/. Payment of losses. 8. The trustee shall register 
such losses in the order they are reported, which order shall be 
observed in the payment of losses : Provided, That no person shall 
receive pay for sheep killed or maimed by a dog owned, kept or 
harbored by himself: Pivvided, further , That the dog fund hereto- 
fore collected shall be added to and applied with the fund arising 
under the provision of this act; and when it shall so occur on the 
first Monday in March of any year in any township that said fund 
shall accumulate to an amount exceeding fifty dollars, over and 
above orders drawn against the same, the surplus aforesaid shall 
be paid and transferred to the county treasurer of the county in 
which such township is located, and the fund arising fromx such 
surplus from the township of the county shall constitute a county 
dog fund, and shall be distributed among the townships of the 
county in which the orders drawn against the dog fund exceed the 
money on hand. This distribution shall be made on the second 
Monday in March, and if the said county dog fund be insufficient 
to pay for all the killed sheep of all the townships, the distribution 
shall be made in the ratio of the orders drawn against the dog 
fund of the townships, and unpaid and unprovided for, which ratio 
shall be gotten from the report of the trustees of the townships 
made to the auditor of the county, v/hich it is hereby directed shall 
be made by each township trustee of the county upon the first 
Monday in March of each year, which report shall show all receipts 
into the dog fund of his township, and all orders drawn against the 
same; and when it shall occur upon the second Monday of March 
that there is a surplus left of the dog fund after provisions have 
been made for the payment for all the killed sheep of ail of the 
townships of the county, such surplus shall be distributed for the 
schools of the county in the same manner that i^iterest upon the 
congressional school fund is distributed. [El. Sup. § 454.] 

I. See § 6329^7. The fund, over $50, is distributed now according to section 
6509«, and section d^i^^']d. The fund, so far as it goes to the support of schools, 
must be apportioned amongst the schools of the township; and its application 
to a single school, or its use in advance of the apportionment of other funds for 
tuition, may be stopped hy an injunction, 47 Ind. 241. 



785] DOGS. [§§63297* — 6^2gn 

2. Mandate will not lie to compel the trustee to paj for sheep killed; the 
remedy is by suit against the township, 57 Ind. 390. 

3. The fund is first applicable to the pajanent for sheep killed without 
reference to the rear in which it was collected, 57 Ind. 390. 

[1SS3, p. 14S. Took effect without approval March 7, 1883.] 

Sec. 6329/ Repeal of act of 1881. 9. An act entitled '*An act to 
protect sheep husbandry, to regulate matters connected therewith, 
to provide for registration, taxing and killing dogs," approved 
April 13, 1 88 1, be and the same is hereby repealed. 

1. The law repealed is §§ 2647 to 2651, inclusive, of Revised Statutes of 1881. 

2. See § 6329^. 

[1891, p. 453. Approved and in force March 5, 1891.] 

Sec. 6329/^. Eegistration. Any person who shall own, harbor or 
permit any animal of the dog kind to harbor or stay about his, her 
or their premises, shall on or before the first Monday in May, 
1 89 1, and each year thereafter on or before the first Monday vcv 
May report the number of dogs owned or harbored, or permitted 
to be harbored by such person which exceed the age of three 
months, to the township trustee of their respective townships, who 
shall register the same to the proper owner, with a brief descrip- 
tion of each dog, giving sex, color and breed, for which the owner 
or person permitting such dog to be harbored shall pay for a male- 
dog the sum of one dollar and for a female dog the sum of two: 
dollars, and for each additional male dog two dollars and for each 
additional female dog five dollars, which sum shall be paid to the 
trustee on or before the first Monday in May, as provided in this 
act, and upon such payment the trustee shall give a receipt, which 
receipt shall be prima facie evidence of compliance with the re- 
quirements of this act. 

See § 6329^, note; also § 6329. 

Sec. 6329/. "Eunabout dog." 2. It shall be unlawful for any dog 
to roam about over the country unattended by its owner or the 
agent of said owner, and that when such dog shall be found roam- 
ing over the country unattended, as provided in this act, the 
same shall be deemed a *^ runabout dog," and it shall be lawful to 
kill such dog. 

Sec. 6329?^. Injuring or killing dog. 3. Any person who shall 
maliciously injure, or kill, or any person who shall steal, take, or 
carry away a dog which has been duly registered, shall be deemed 
guilty of a misdemeanor, and upon conviction shall be fined in any 
sum not exceeding one hundred dollars. , • 

See § 6329/. 

Sec. 6329;z. Misdemeanor to harbor unregistered dog. 4. It shall 
be a m.isdemeanor for any person to keep, harbor, or to pennit 
50 



§§ 6329^ 6329^] TAXATION. [786 

any dog to stay about his, her or their premises which has not 
been registered, as provided by this act, and any person or persons 
violating the provisions of this act shall be fined in any sum not 
exceeding five dollars. 

Sec. 6329^. Grand jury investigates. 5. Any person may inform 
the grand jury of the violation of this act, and it shall be the duty 
of the grand jury to investigate the alleged violation of the law, 
and to send for the registry of the township trustee, which registry 
shall h^ prima facie evidence as to the registration of such dog or 
dogs : Provided, further, That any citizen may file an affidavit 
before any justice of the peace in the county, who shall summon 
the trustee to appear with the record of registered dogs, kept as 
provided in this act, which record shall be offered as evidence. 
Any person prosecuted or fined under this act shall be liable to 
additional prosecution so long as the provisions of this act are not 
complied Avith. 

Sec. 6329/. Dog fund. 6. All moneys derived from the registra- 
tion of dogs, and all fines under this act, shall constitute a fund 
known as the dog fund, which fund shall be for the payment of 
damages sustained by the owners of swine, cattle, horses and 
sheep killed, maimed, or damaged by dogs within such township. 
Each township trustee shall collect all fines belonging to his town- 
ship from the different courts where such fines have been assessed. 

See § 6329^, note. 

Sec. 6329^. Claims for damages. 7. The owners of sheep, swine, 
cattle or horses killed, maimed or damaged by dogs shall, within 
ten days from the time thereof, report to the trustee of his town- 
ship, under oath, in which he shall state the number and age (as 
he believes), and the value of the sheep, swine, cattle or horses 
so killed, and the damages sustained on account of such maimed 
and injured animals ; in which affidavit he must be joined by two 
disinterested and reputable freeholders, and any person who shall 
make any false statement of any such matters shall, upon con- 
viction, be fined in any sum not exceeding one hundred dollars, 
to which may be added imprisonment in the county jail for any 
term not exceeding thirty days : Provided, hoivever, That, if the 
township trustee deems the appraisement of the animals so killed, 
maimed or injured excessive, he shall tender to the owner or 
owners thereof an amount which in his judgment is equal to the 
injury sustained, and if in any action at law by the owner or owners 
thereof for the recovery of such damages, he or they shall fail to 
recover a judgment, exclusive of cost, for an amount greater than 
the amount so tendered, the defendant shall recover cost in such 
suit. 

See §§ 6329//' and 6329/. 



ySj] MANNER OF LISTING PERSONALTY. [§§6329/' — 633O 

Sec. 8329r. Assessing. 8. All dogs registered as provided for in 
this act shall not be assessed for taxation for any purpose whatever. 

Sec. 63295. E-epealing clause. 9. All laws and parts of laws in 
conflict with the provisions of this act are hereby repealed J?ro 
tanto. 

See § 6329/. 



ARTICLE 7— MANNER OF LISTING PERSONALTY. 



6330. Blanks — Statements — Valuation. 6335. Evasion — Assessor's duty. 
6330(7. Meeting- of assessors. 6336. Blanks — Form of '' schedule." 
6330^. Quorum. 6337. Mutes — Blind — Insane — Lists. 
6330^. Chairman and secretary. 63370. Giving- false list. 

63301-!'. Eixes valuation. 6339. False statement — Penalty. 

6330^'. Pay. 6340. Assessor's valuation. 

6331. Interrog-atories. 6341. Penalties. 

6331a. List of property. 6342. Sickness or absence — Proceedings. 

[1S91, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6330. Blanks — Statements — Valuation. 48. On the first day 
of April of each year, or as soon thereafter as practicable, and be- 
fore the first day of June, the assessor shall call upon each person 
required by this act to be assessed, and furnish him or her with the 
proper blanks for the purpose; and, thereupon, such person shall 
make to such assessor a full and correct description of all the per- 
sonal property of which such person was the owner on the first 
day of April of the current year ; and such person shall, also, at the 
same time, make separate, full, and true statements, in like manner, 
in writing, distinctly setting forth in each a correct description of 
all the personal property held, possessed, or controlled by him 
as executor, administrator, guardian, trustee, receiver, partner, 
agent, attorney, president or accounting officer of a corporation, 
consignee, pawnbroker, or in any representative or fiduciary capac- 
ity ; and he shall fix what he deems the true cash value thereof to 
each item of property, for the guidance of such assessor; who 
shall determine and settle the value of each item, after examina- 
tion of such statement and, also, an examination, under oath, of 
the party or of any other person, if he deem it necessary. In de- 
termining and settling such valuation, he shall be governed by 
what is the true cash value, such being the market or usual selling 
price at the place where the property shall be at the time of its 
liability to assessment ; and if there be no market value, then the 
actual value. In making the valuation, annuities and royalties 
shall be valued at their present cash value. For the purpose of 
making such statements, the person to be assessed shall receive the 
proper blanks from the assessor. (62.) 

I. A resident of this State can be taxed for choses in action, bank stocks. 
or other corporation stocks owned in another State, although such stocks and 
securities have never been in Indiana, 14 Ind. 354; loS Ind. 353. As to -wliat 
residence is, see 52 Ind. 361, and § 6271, note. 



§§6330^—6331] TAXATION. [ySS 

2. Assessment lists are competent evidence as tending to show the amount 
of property owned by the assessed. They are " instruments kept in a public office 
in this State," R, S. 1881, § 462, when returned by the assessor to the county 
auditor; and certified copies of them are admissible in evidence. The certifi- 
cate, however, must show that they " are true and complete copies " of those in 
the custody of the auditor; and merely saying that "the above is a true copy of 
the assessment list" of a person named for a certain year, is not sufficient, 75 
Ind. 208. 

3. To constitute a valid assessment it must be made by the proper officer. 
There must, at least, be some attempt toward an assessment, and a compliance 
with the law bv some officer authorized to make the assessment. If the assess- 
ment is illegal the taxes can not be collected; even the county treasurer can not 
maintain (vmder § 6435) an action to recover the taxes illegally assessed, 118 
Ind. 214 (distinguishing 91 Ind. 528; 95 Ind. 182); 117 Ind. 410. 

4. When assessment made, § 6280. 

[18S9, p. 21S. Approved March 8, 1889, and in force May 10, 1889.] 

Sec. 6330^. Meeting of assessors, i. It shall be the duty of 
the county auditors of the several counties of this State to notify 
the township assessors of their respective counties to meet at the 
auditor's office on the first day of April of each year, or if the first 
day of April be Sunday, then on the day succeeding, for the pur- 
pose of agreeing upon a uniform rate of assessment for the county. 
[El. Sup. § 2130.] 

Sec. 6330^. Quorum. 2. A majority of the township assessors 
at such meeting shall constitute a quorum for the transaction of 
business. [El. Sup. § 2131.] 

Sec. 6330<;. Chairman and secretary. 3. The county auditor 
shall be chairman of said meeting, and they shall choose one of 
their number to act as secretary. [El. Sup. § 2132.I 

Sec. 6330r/. Fixes valuation. 4. Such meeting shall make out, 
as far as practicable, a list of personal property, and attach thereto 
a uniform rate of assessment, according to their relative values in the 
several townships and localities; and a majority of said assessors 
having signed said list the secrefery shall make out and cause to 
be presented to each of said assessors a copy thereof, and said 
assessors shall be governed as far as practicable by said list of 
prices. [El. Sup. § 2133.] 

Sec. 6330^. Pay. 5. The county auditor and assessors shall 
be allowed for said service the sum of three dollars each, *to be 
paid out of the county treasury. [El. Sup. § 2134.] 

[1891, p. 199, Approved and in force March 6, 1891.] 

Sec. 6331. Interrogatories. 49. The person called upon or 
required by the assessor to list property shall answer, in writing, 
under his signature, the following interrogatories, under oath, up- 
on ■ the proper blank form thereof, to be furnished him by the 
assessor, who shall also administer the oath : 



789]- MANNER OF LISTING PERSONALTY. [§^331^ 

Interrogatory One. Are you or zvere you, on the first day of April of the 
prcsejit year, the exectctor of the last ivill or the administrator of the estate of 
any deceased person; or the guardian of the estate of any infant or person of 
unsound. 7nind; or the trustee of the -property of any person; or the receiver 
of any corporation, association, or firm; or the agent or attorney or banker in- 
■vesting, loaning, or otherivise controlling the money or other personal property 
of any other person^ resident in this State; or the president or accounting 
ofiiccr of any corporation; or ^ partner, consignee, or pa%v7ibroker? If yes, 
designate for xvhom you tverethen or are 720zv acti?tg in such representative or 
fiduciarv capacity ; and ifyott tvere, or are notv, acting U7ider the authority of 
any particular court, 7iame the court, and also state to -what court you report. 

Interrogatory Two. Have you, before the first day of April of the present 
yeesr, either personally or through the agency of others, caused all or any part 
of your taxable money or other property to be temporarily converted, either by 
sale, borrozving, exchange, or in any other mariner, into Ufiited States notes not 
taxable, commonly called "'■greenbacks^'' or bonds or other securities of the United 
States not taxable, or any other property not taxable, with the intentio-n to pay 
back, return, or exchange, or sell back such property after you have made out 
your tax statement, for the purpose of evading the paytnent of taxes on such 
property ; or did you, on or after the first day of April of the present year, and 
before you savj this interrogatory, pay back, return, re'excha7ige, or sell back 
sicch property for the purpose aforesaid? ' ^ 

Interrogatory Three. If you have converted any of your mo7iey or property 
or 7no7iey or property of a7iy other person as i7iquired of yoti, the7i state %vhe7i 
the sa77ie vjas so C07iverted or invested, a7id the ki7id a7id the a77iount or value 
thereof. 

A space shall be left on the blank, under each interrogatory, for 
the answer to the same. (63.) 

Conversion of property into United States bonds, previous to the enactment 
of this section was held valid, 55 Ind. 433. " Greenbacks" can not be taxed by 
the State, 21 Ind. 261 ; nor can U. S. bonds, 23 Ind. 331; but national bank cur- 
rency or notes can be, 32 Ind. 27. 

Sec. 6331^. List of property. 50. Every person required by 
this act to make or deliver such statement or schedule shall set 
forth an account of the property held or owned by him, as fol- 
lows : 

PERSONAL PROPERTY CREDITS. 

Firsf All annuities and royalties. 

Second. All bonds, notes, mortgages, accounts, demands, 
claims, and other indebtedness 'owing to such person, whether 
such indebtedness is owing from individuals or corporations, pub- 
lic or private, and whether such debtors reside within or without 
the State, including all deposits in banks or with other corporations 
or with individuals. 

Third. All bona fide indebtedness owing by such person. 

PERSONAL PROPERTY CHATTELS- 

First. All shares in banks organized in this State under any 
law of this State, or of the United States, and their full market 
value, after deducting the value of the real estate as taxed to the 
banks. 



§§6331^,6335] TAXATION. [790 

Secojid, All shares in foreign corporations, other than banks, 
and their value. 

Third. All shares in other corporations organized under the 
laws of this State, when the property of such corporation is not 
exempt by some law, or is not taxable to the corporation itself, 
fend the cash value of such shares. . 

Fourth. All m.oneys. 

Fifth. The value of all gold and silver plate, watches, diamonds 
and jewelry. 

Sixth. The value of all household furniture and musical instru- 
ments. 

Seventh. All patent rights, describing them, and giving the 
number of each patent, and the value of each. 

Eighth. The number and kinds of domestic animals and their 
value. 

Ninth. All wagons, carriages and sleighs and their value. 

Tenth. All mechanical and agricultural implements and tools, 
and their value. 

Eleventh. All machinery not affixed to real property and its 
value. 

Twelfth. All ships, boats and vessels, whether at home or 
abroad, and their value. 

Thirteenth. All merchandise and stock in trade and its value. 

Fourteenth. All logs, timber, lumber, posts, ties, cord-wood, 
staves, or other felled or cut timber, and the value. 

Fiftee7zth. All other goods, chattels and personal property, not 
heretofore specifically mentioned, and their value, except property 
specifically exempt from taxation. 

Sec. 6331(5'. Failure to make statement. 51. In every case where 
any person shall neglect or refuse to make out and deliver a sworn 
statement of his property to the assessor as required by this act, or 
if the assessor shall be in doubt whether such statement is correct, 
suck assessor is hereby authorized and required to examine on oath 
any other person whom he believes to have knowledge of the 
amount or value of any property owned or held by such person so 
neglecting or refusing ; and such assessor is authorized to set down 
and assess to such person such amount of personal property as he 
may deem just. 

Sec. 6335. Evasion — Assessor's duty. 52. Whenever, from the 
answer to the second interrogatory on the schedule, and from the 
evidence before him, the assessor is satisfied that the person re- 
quired to list his property has, since the first day of April of the 
preceding year, temporarily converted any part of his property 
into property not taxable, for the purpose of preventing such prop 
erty from being listed and of evading the payment of taxes thereon, 
such assessor shall cause such property to be assessed at its true 
cash value. {6^.) 



791] 



MANxNER OF LISTING PERSONALTY. 



[§ 6336 



Where personal property is converted into United States securities, for the 
express purpose of avoiding taxation, a court of equity will not interfere to 
enjoin the collection of a tax assessed on such securities, 59 Ind. 460. 

Sec. 6336. Blanks — Form of *' schedule." 53. Before the first day 
of April of each year the county auditor shall have in readiness 
for deHvery to the assessor the proper assessment books and neces- 
sary blanks for the assessment of all property, real and personal. 
The schedule, with affidavits thereto attached, to be signed by 
the party, shall be in the following form, the names and places be- 
ing changed to suit each person: The words ''value," *'cash 
value," "true value" or "valuation," Avhenever used in this act, 
shall be held to mean the usual selling price at the place where the 
property to which such term or terms are applied shall be at the 
time of assessment, being the price which could be obtained there- 
for at private sale, and not at forced or auction sale. The party 
shall write the word "none" after each item whenever he has no 
property to assess as named in such item, and no item shall be 
passed without being answered. 

SCHEDULE 



Of all property held by , of 

County, Ind., on the 1st day of April, 189 



Township, 



PERSONAI. PROPERTY — CREDITS. 







>~^ 


>^ 








u 




Description of Property. 




C 

.2 ^ 


^ 




rt ^ 


rt 'Si 






ri >-* 


-i m 


;3 




13 


1^< 


^ 




> 


> 


T 


All annuities ^ 






2 


All bonds ^ 






^ 


All notes secured by inortgage ^ 







4 


All other notes ^ 






5 
6 


All accoimts - ^ 






All demands and claims ^ 






7 


All deposits in banks. ... ^ , 






8 


All deposits with other corporations ^ 






Q 


All deposits luith individuals ^ 






10 


All other amoimts due 7ne from any person or 

corporation <9 








Total credits due me ^ 








From the sum of the above credits I claim a deduct io7i of 








the amount of my bona fide indebtedness, to wit : 








Total indebtedness which should be deducted from mv 








credits ^ 








Leaving balance for which I should be assessed .8 








§ 6336] 



TAXATION. 



[792 



PERSOXAIv PROPERTY — CHATTEI.S. 



Description of Property. 



10 
II 
12 
13 
14 

15 

16 

17 

18 

19 

20 
21 

22 
23 

24 



29 



Money on hand or subject to my order not already entered 
under title of 'credits'' 

All money loaned by me and not already entered on this 
schedule 

All interest owing me not entered on this schedule .... 

All judgments or allowances in my favor, entered in any 
court, and which I have not already entered on this 
schedule ; also, all legacies, bequests and other estates in 
expectancy 

All shares of stock in a?iy corporation formed outside of 
this State ; and also all shares of stock in any corpora 
tion for'iued in this State, and conducting its business 
outside of this State 

Value of goods and merchandise on hand 

Value of all articles purchased, received or otherwise held 
for the purpose of being used, in whole or in part, in any 
process or operation of inanufacturing , coinbijzing, recti- 
fying or refilling 

Value of mamfactured articles on hand 

Value of manifacturing tools, implements and machinery 
{other than e7igines and boilers, which shall be listed as 
such) . . . , 

Value of agricultural tools, implements and machinery . 

Value of gold or silver plate and plated ware 

Value of diamonds and. jewelry , . . 

Value of household furniture a7id library '. 

Value of mechanical tools, law and viedical books, surgi- 
cal instruments and medicines 

Value of nursery stock 

Value of property such person is required to list as pawn- 
broker 

Value of property of companies and corporations other 
than property hereinbefore enumerated 

Value of property of saloons and eating houses 

Value of market garden products 

Value of home-made manufactures 

Value of slaughtered animals 

Every franchise and description ajid value 

Value of brick, stoiie and all other building material on 
hand 

Number of steamboats, sailing vessels, wharf boats, canal 
boats, barges, or other water craft, either within or 
without this State, and value 

Number of patcjit rights and value . 

Number of steam engines, including boilers, and value . 

Number of fire and burglar proof safes and value . . . 

Number of billiard, pigeon-hole, bagatelle and other simi- 
lar tables and value 

Number of pianofortes aJid other musical instrumejits and 
value .... 

Number of sewing or knitting machines a?id value . . . 

Number of watches and clocks and value ..,,,... 



790^ 



MANNER OF LISTING PERSONALTY. [§ 6336 

PERSONAI. PROPERTY — CHATTEI.S. — CONTINUED. 



Description of Property. 



>. 

^ 



si 



•^ O 
O "^ 



Number of carriages, wagons, coaches, hacks, carts, drays 
or other vehicles and value » . , . 

Number of hoop-poles aiid value 

Number of horses a?id value 

Number of mules, jacks and jennets and value . , . . 

Number of cattle and value 

Number of sheep and value . 

Number of hogs and value 

Number of cords of wood and value 

Bushels of coal and value 

Bushels of lime and value c . . . 

Bushels of wheat and value 

Bushels of cor?i and value 

Bushels of rye and value 

Bushels of oats and value 

Bushels of potatoes ajid value 

Bushels of barley and value 

Bushels of grass and clover seed and value 

Bushels of flaxseed and value 

Bushels of fruit and value 

Tons of hay and value 

Tons of hemp and value 

Pounds of beef and value 

Pounds of bacon and value 

Pounds of bulk pork and value 

Pounds of lard and value 

Pounds of wool and value 

Pounds of tobacco and value 

Pounds of hops and value 

Poimds of 7naple sugar and value 

Barrels of beef and value 

Barrels of pork and value 

Gallons of cider a7id value 

Gallons of vinegar and value 

Gallons of wine and value 

Gallons of sorghum or maple molasses and value . . . 

Feet of himber and value 

Pounds of starch and value 

Pounds of feed and value 

Reams of paper a?id value ' 

Poimds nf pulp and value ... 

Gallons of oils of all kinds and value : 

Number of scales a?td value i 

Number of yards of cloth and value ; 

Number of yards of flannel and value j 

Number of blankets and value j 

Pounds of yarn and value - • • 

Tons of ice and value j 

Number of threshing machines and value j 

Number of corn shelters and value ... 

Value of logs, timber and all other property, not specified \ 
above, required to be listed ! 

Male dogs owned or harbored by me j 

Female dogs owned or harbored by me .. o ..-...!..,., , 



§ 6336] 



TAXATION. 



[794 



To the Assessor : 

The following is a list of all persons in my family, and belonging to my 
township, who are deaf and dumb, blind, idiotic, or insane, with^ their names, 
ages and sex, and also the na^ne of the father, mother or guardian, and their 
postoffice address : 



Name. 


Age. 


Sex. 


Whether Deaf and 
Dumb, Blind, Id- 
iotic or Insane. 


Name of Father, 
Mother or 
Guardian. 


Postof&ce 
Address. 


/ 












\ 










\ 










! 










• • 'i 











State of Indzang., 
I, 



County, ss : 

being duly sworn, say, to the best of my knowledge, 



information and belief the foregoing statement contains a true, full and 
complete list of all property held or belonging to me, and dogs owned, kept 
or harbored by me, on the first day of April, including all personal prop- 
erty, appertaining to merchandising, whether held in actual possession or 
only having been purchased with a view to possessioji or profit, and all 
manufactured articles, whether on hafid or owned by me. In all cases where 
I have beeii unable to exhibit certain classes of property to the assessor, such 
property has been fully and fairly described, and its true condition and value 
represented. That I have in no case sought to mislead the assessor, as 
to either quantity or quality or value of property, and that the deductions 
claimed froin credits are homo, fide debts for a consideration received and 
do not consist in any part in bonds, notes or obligations of any kind given 
to any insurance company on account of premium or policies, nor on account 
of any unpaid subscription to any literary, scientific or charitable institution 
or society, nor 07i account of any subscription to, or indebtedness payable on 
capital stock of any company, whether i7icorporated or u7iincorporated; and 
I further swear that since the first day of April of last year, I have not 
directly or indirectly, converted or exchanged any of my property te^npo- 
rarity, for the purpose of evading the assessment thereof for taxes, into 
non-taxable property, or securities of any kind. 

I further swear that I have to the best of my knowledge and judgment 
valued said property at its true cash value, by which I mean the usual sell- 
ing price, being the price which could be obtained for said property at pri- 
vate sale, and not at forced or auction sale. 



Subscribed and sworn to before me this 



day of- 



189- 



By 



Deputy. 

(68) 



I. All debts due to ^person domiciled in this State are taxable to such per' 
son at the domicile. All debts due from him to persons not domiciled in this 
State on April first, unless in the hands of a resident agent, are not taxable, 68 
Ind. 247; 108 Ind. 353. See § 6298, 7iote 2. 



795] MANNER OF LISTING PERSONALTY. [§ 6336 

2. The tax-payer may deduct his bona fide debts from all his moneyed 
capital and credits, except money on hand or on deposit, money loaned, bonds, 
and shares of stock in corporations; and the courts will take judicial notice of 
the fact that the moneyed capital from which the tax-payer may so deduct his 
debt is a material portion of the whole moneyed capital of the State, 107 
Ind. 206; 40 Ind. 190. 

3. In the assessment and taxation of natioj^al hank stock, the owners thereof, 
if they have no other moneyed capital or credits from which to deduct their bona 
fide debts, are entitled to deduct them from the assessed value of such shares of 
stock, notwithstanding the provisions of the tax law of 1881, 107 Ind. 206; 105 
U.S. 322; 100 U. S. 543; 113 U. S. 689, S. C. 20 Cent. L. Jr. 309; 25 Fed. Rep. 
749; 53 Wis. 436; 58 Cal. 133; III Ind. 240. 

4. The phrase " money at interest,''^ as used in the tax law, is the equivalent 
of " mojiey loaned,^'' 107 Ind. 206. 

5. The schedule (§ 6336) controls in case of conflict with any portion of the 
tax law, 27 Ind. 206; 40 Ind. 190; 71 Ind. 512 ; 105 U. S. 322. 

6. Under 'the tax law of 1872 a tax-payer had the right, in listing his per- 
sonal property for taxation, to deduct from his " money at interest, either 
within or without the State," and '"all other amounts," together constituting 
the " total amount of all credits" owned by him, his bona fide indebtedness, and 
to list the surplus only for taxation, 71 Ind. 512. 

7. When an appeal will lie, 71 Ind. 512. 

8. If a tax-payer gives notice to»the assessor of his indebtedness, but such 
assessor fails to enter it upon the sworn list, notwithstanding the demand of 
the person assessed that he has the right to deduct from the value of his na- 
tional bank stock, or paper credits, the amount of his bona fide indebtedness, 
and the officer still refuses to allow the deduction on the ground that it is not 
authorized bylaw; and afterwards such person makes alike demand on the city, 
town or county treasurer before paying his taxes, which is also refused, the 
assessment, to the extent of the deduction improperly denied, is erroneous, and 
the tax-payer is entitled to have the excess of taxes collected refiunded, whether 
paid voluntarily or not, and without appearing before the board of review 
and there attempting to have the assessment corrected, iii Ind. 240; 102 N. Y. 
176, S. C. 55 Am. R. 796; 105 U. S. 305, 323. See also 113 U. S. 689; 23 Wall, 
480; 100 U. S. 539; loi U. S. 143, 153; 10 Biss. 503; 2 Flippin, 61. 

9. In putting down "the credits due and owing," the tax-paj^er is not 
required to itemize them, but may put down the sum of them all, and his esti- 
mate of their value ; but the assessor, to correct any error the tax-payer may 
fall into, or fraud he may design to perpetrate, may compel such tax-payer to 
exhibit to him a list of all notes, drafts, mortgages and judgments, held or 
owned by him, not for the purpose of listing them, but for the purpose of val- 
uation. The assessor may even make the list if the owner refuses or neglects 
to do so, 107 Ind., p. 209. 

10. The assessment list as evidence of ownership of property listed in re- 
plevin suits, 82 Ind. 75; 79 Ind. 554; 108 Ind. 182. But the value of the prop- 
erty can not be thus proved, nor his estimate thereof contradicted by the use 
of such schedules, 108 Ind. 182. 

11. Schedule as evidence of ownership of propert}', see § 6283, note; § 6330, 
note 2; 75 Ind. 485 The list must be sworn to by the owner, 108 Ind. 353. The 
assessor and his deputies have the power to administer the oath, loS Ind. 353. 
In an indictment under this section ior perjury \n falsely stating the amount of 
moneys and credits owned hj the defendant, it must be stated that the defend- 
ant Avas taxable for such property in the township in which the list was' made, 
either by alleging that he was a resident of such township on the lirst day of 
April, or by negativing the exception contained in § 6298, and thus showing, 
although he became a resident of the township after the first day of April, he 
had not been assessed upon his moneys and credits in the taxing district from 
which he had moved, 108 Ind. 353. An exact copy of the oath administered to 
the defendant must be set forth in the lindictment; and if only the purport is 
set forth it will subject the indictment to a motion to quash, 74 Ind. 592 ; R. S. 
18S1, 6 1749. 



§§6337—6339] TAXATION. [796 

Sec. 6337. Mutes — Blind — Insane — Lists. 54. It shall be the 
duty of the assessor, at the time of assessing property, to ascer- 
tain and set down, in tables prepared for that purpose, a list of all 
persons in their respective townships who are deaf and dumb, 
bhnd, idiotic, or insane, setting forth the name, age, and sex of 
each, also the names of the father, mother, or guardian, and their 
post-office address; and, in addition, the assessor of the township 
wherein the county poor-house is located shall set down the num- 
ber of incurably insane w^ho are kept therein ; which list they shall 
return to the county auditor at the same time they return the list 
of property. The said county auditor shall report the same to the 
chief of the bureau of statistics at the time of making their returns 
of the list of property; and said chief shall lay before the super- 
intendents of the institution for the education of the blind, the 
insane, feeble-minded, and of the deaf and dumb, copies of the 
lists so made. (69.) 

See R. S. 1881, § 5720. 

[iSSi S., p. 174. Approved April 14, 18S1, and in force September 19, iSSi.] 

Sec. 6337^. Giving false list of taxables. 240. Whoever, when 
requested by the assessor, state, county or municipal, or any of 
his deputies, fails to give a true list of all his taxable property, or 
to take and subscribe any oath in that behalf, as required by law, 
or shall fix a fraudulent value, where an oath is not required, on 
on such property, upon conviction thereof, shall be fined not more 
than five hundred dollars nor less than ten dollars. [R. S. 1881, 
§ 2150.] 

See §§ 6339,6341. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6339. ~Palse statement — Penalty. 55. If any person or cor- 
poration shall give a false or fraudulent list, schedule, or statement 
required by this act ; or shall willfully fail or refuse to deliver to 
the assessor, when called on for that purpose, a list of the taxable 
property which he is required to be listed under this act ; or shall 
temporarily convert any part of his property into property not 
taxable, for the fraudulent purpose of preventing such property 
from being listed, and of evading the payment of taxes thereon, — 
he or it shall be liable to a penalty of not less than fifty dollars nor 
more than five thousand dollars, to be recovered in any proper 
form of action, in the name of the State of Indiana, on the relation 
of the prosecuting attorney. The assessor shall forthwith notify 
the prosecuting attorney of such delinquency or offense, and he 
shall prosecute such offender to final judgment and execution; and 
such fine, when collected, shall be paid into the county treasury, 
for the use of the county, and the prosecuting attorney shall receive 
ten per centum commission on all moneys so collected and paid 
in, and a docket fee of ten dollars, to be taxed and collected with 



797] MANNER OF LISTING PERSONALTY. [§§ 634O 6342 

costs in such action. Absence from the township during the sixty 
days, without design to avoid the Hsting, or sickness during such 
period, shall be a sufficient defense to such prosecution. (7i-) 

1. Sufficiency of indictment, 17 Ind. 305. The indictment must allege that 
the defendant -was of sound mind and of full age at the time of refusal, and a res- 
ident of the township, and was the owner of the property named, on April 1,72 
Ind. 2S5 ; 17 Ind. 305; 74 Ind. 592 ; 108 Ind, 132. 

2. This section is constitutional, and it and § 6337a do not inflict double 
punishment, loS Ind. 132; 116 Ind. 162, 515 ; 117 Ind. 477; 119 Ind. 555. 

3. The notice is no part of the offense, and need not be averred, 116 Ind. 
132. The prosecution can not be by indictment, 116 Ind. 514; 117 Ind. 477. 
The action suryiyes and maybe brought against his administrator, 119 Ind. 555; 
R. S. 1S81, § 2S3. 

Sec. 6340. Assessor's valuation. 56. In every case where any 
person shall refuse to make out and deliver to the proper assessor 
the statement required under this act, or shall refuse to take and 
subscribe to any of the oaths and affirmations required by this act, 
the assessor shall proceed to ascertain the number of each descrip- 
tion of the several enumerated articles of property and the value 
thereof; and, for this purpose, he may examine, on oath, any 
person or persons whom he may suppose to have a knowledge 
thereof; and such assessor shall make a note of such refusal in a 
column opposite the person's name, and the county auditor shall 
add to such valuation, when returned by the assessor, fifty per 
centum on the value so returned. (72.) 

Sec. 6341. Penalties. 57. If any person required by the asses- 
sor to give evidence, as provided in the preceding section ; or, in 
any case when interrogated by the assessor as to any property, 
real or personal, of himself or others, shall refuse to be sworn or 
to affirm ; or, if having been sworn or affirmed, he shall refuse to 
answer the interrogatories hereinbefore set out, or any other ques- 
tions touching the subject of inquiry, — such person, upon convic- 
tion thereof, shall be fined in any sum not more than five hundred 
dollars nor less than ten dollars, to which may be added imprison- 
ment in the county jail not exceeding six months. (73-) 

See 6 6337*7. 

Sec. 6342. Sickness or absence — Proceedings. 58. When any 
person shall have been prevented from making and verifying his 
statement by reason of sickness or absence from the county during 
the sixty days, and the assessor shall have made a statement for 
him, he may, at any time before the assessment of taxes thereon 
by the county auditor, make, verify, and file with the county audi- 
tor the proper statement; but, in such cases, before the auditor 
shall receive such statement, the person making the same must 
add to the ordinary affidavit a statement to the effect that his fail- 
ure to give the assessor such statement was occasioned by his 



§ 6343] TAXATION. [798 

sickness or absence, and, if from absence, that such absence was 
without design to avoid the Hsting of his property; and on the fil- 
ing of such statement, the auditor shall correct the statement made 
by the assessor. (74.) 
See § 3071. 



ARTICLE S— BANKS AND BANKERS. 

SEC. SEC. 

6343. Statement — Contents. 6347. Entry of valuation. 

6344. Bank shares — Rate of tax. 6348. Tax, when lien on shares. 

6345. Statement — Manner of listing-. 6349. Bank to retain dividends. 

6346. Auditor to compel statement. 6350. Municipal taxing. 

[1S91, p. 199. Approved and in force March 6, 1891.] 

Sec. 6343. Statement — Contents. 59. Every company, associa- 
tion, or person not incorporated for banking purposes under any 
law of this State or the United States, who shall keep an office or 
other place of business, and engaged in the business of lending 
money, receiving money on deposit, buying or selling bullion, bills 
of exchange, notes, bonds, stocks or other evidences of indebted- 
ness, with a view to profit, shall, between the first day of April 
and the first day of June of each year, make out and furnish to 
the assessor, a statement setting forth and showing, with reference 
to the first day of April of the current year — 

First. The amount of money on hand, other than United States 
treasury-notes, and the amount of money in transit. 

Second. The amount of funds in the hands of other banks, 
bankers, brokers, or others, subject to draft. 

Third. The value of checks or other cash items not included in 
any of the preceding items. 

Fourth. The amount of bills receivable, discounted, or pur- 
chased, and other credits due or to become due, including accounts 
receivable, and interest accrued but not due, and interest due and 
unpaid; and all notes secured by mortgage; also, the value of 
such bills receivable, notes and other credits. 

Fifth. . The amount of bonds and stocks of every kind, and 
shares of capital stocks of joint-sJ:ock or other companies or corpo- 
rations, held as an investment or [in] any way representing assets, 
showing those that are exempt from taxation, if any, and also 
those subject to taxation and the amount of each ; also the value 
of such bonds, stocks and shares. 

Sixth. All other property appertaining to said business, other 
than real estate (which real estate shall be listed and assessed as 
other real estate is listed and assessed under this act). 

Seventh. The amount of all deposits made by other parties. 

The aggregate amount of the first, second, and third items in 
the said statement shall be listed as moneys. The amount of the 
sixth item shall be listed the same as other similar personal prop- 



799] BANKS AND BANKERS. [§§ 6344, 6345 

erty is listed under this act. The amount of the seventh item 
shall be deducted from the aggregate amount of the fourth item 
of said statement; and the value of the remainder, if any, shall be 
listed as credits. (75-) 

1. See § 3254, notes. 

2. Real estate owned by a bank should be assessed for taxation as realty in 
the township where situated, and not as a part of the capital stock of the bank, 
85 Ind. 341. 

Sec. 6344. Bank shares — Eate of tax. 60. The shares of capital- 
stock in any bank located within this State, whether organized 
under the laws of this State or of the United States, shall be 
assessed to the owner thereof in the township, city, or town where 
such bank or banking association is located, and shall be taxed at 
the same rate as other personal property in the same locality is 
taxed, and with reference to its value on the first day of April of 
the current year, ij^-^ 

See § 3254, notes. The fact that stock of the old state bank is not taxable 
does not exempt national banks, 48 Ind. 568. 

Sec. 6345. Statement — Manner of listing. 61. The president, 
cashier, or other accounting officer of such bank or banking asso- 
ciation shall, between the first day of April and the first day of 
June of each year, make out a statement, under oath, in duplicate, 
showing the number of shares comprising the capital-stock of such 
bank, and the name and residence of each stockholder, with the 
number of shares owned by such stockholder in such bank; and 
he shall affix what he deems the true cash value of each of said 
shares, and also the true cash value of the entire capital-stock of 
such bank or banking association on the first day of April, and 
shall deliver one of such statements to the assessor in the town- 
ship wherein such bank or banking association is located, and the 
other to the county auditor; and such capital-stock shall, there- 
upon, be listed and assessed by the assessor, and return thereof 
made in all respects the same as similar property belonging to 
other corporations and individuals. And whenever any such bank 
shall have acquired real estate or other tangible property, the as- 
sessed value of such real estate or tangible property shall be de- 
ducted from the valuation of the capital-stock of such bank. In 
making such statement of the true cash value of such shares, the 
credits shall be given and the bona fide indebtedness of such bank 
deducted therefrom, as in the case of individuals. The assessor 
shall determine and settle the true cash value of each share of 
stock, after an examination of such statement; and, also, an ex- 
amination, under oath, of such officer, if he deem it necessary; 
and in determining and fixing the true cash value of each of said 
shares of stock, he shall be governed by the market or usual sell- 
ing price of such stock at private sale at the place where the bank 



§§ 6346 6349] TAXATION. [800 

is located; and, if there is no market value, he shall determine the 
actual value, taking into consideration the surplus and individual 
profits, if any, just as he would with respect to other moneyed 
capital in the hands of individual citizens of this State. {77-) 

1. The auditor is required to give a certified copy of this statement to any 
city or town demanding it, §§ 3255, 3256. How valued, § 3260. 

2. The fact that this section requires an officer of the bank to list the stock 
does not render the act void in the case of a national bank. So the require- 
ments of this section that the stock shall be listed at the place where the bank 
is located does not render it invalid, even though the owner of the stock live 
elsewhere, 33 Ind. 107, iii. See § 3254. 

Sec. 6346. Auditor to compel statement. 62. In case of the 
failure or refusal of the president, cashier, or other proper account- 
ing officer of such bank to make and return such duplicate state- 
ments within the time aforesaid, the auditor of the proper county 
shall sumimon such officer to appear forthwith, before him, with 
the books of such bank or banking association; and said auditor' 
is hereby empowered to compel the attendance of said officers .in 
obedience to such summons, and to examine them under oath, 
and make such investigation, at the expense of such bank or bank- 
ing association, as may enable him to obtain the information pro- 
vided for in the preceding section. {7^-) 

See 5 Ind. 310. 

Sec. 6347. Entry of valuation. 6^. The county auditor shall 
enter the valuation of such capital-stock on the tax-duplicate of 
the current year, and shall compute and extend taxes thereon the 
same as against the valuation of other property in the same town- 
ship, town, or city. (79.) 

Assessment by city or town, 6 3257. 

Sec. 6348. Tax, when lien on shares. 64. Taxes assessed upon 
shares of bank-stock shall become a lien thereon upon the first 
day of April of the current year ; and such lien shall be in nowise 
affected by any sale or transfer of such stock. Such taxes shall 
be paid by the owner or holder thereof in the same manner that 
other individuals or corporations pay their taxes, and subject to 
the same penalties. (80.) 

See § 3259. 

Sec. 6349, Bank to retain dividends. 65. It shall be the duty of 
every such bank or the managing officer or officers thereof, after 
being notified in writing to do so by the county treasurer, to 
retain so much of any dividend or dividends belonging to such 
stockholders as shall be necessary to pay any tax levied upon their 
shares of stock, respectively, until it shall be made to appear to 
such bank or its officers that such taxes have been paid. And 
any officer of any such bank who shall pay over or authorize the 



80l] FOREIGN CORPORATIONS. [§§6350,6351 

paying over of any such dividend or dividends, or any portion 
thereof, contrary to the provisions of this section, shall thereby 
become liable for such tax ; or the bank may pay the tax due 
from any of its shareholders, and retain the amount thereof, with 
interest, from any subsequent dividend. (81.) 
See §3258. 

Sec. 6350. Municipal taxing. 66. Nothing in this act shall be 
so construed as to exempt from taxation for municipal purposes 
the shares of capital-stock of any bank or banking association 
organized under the laws of this State or the United States, but 
all such shares of stock may be assessed and taxed, for all pur- 
poses, at the same rate that other personal property is assessed 
and taxed in the same locahty. (82.) 

See 6 3254, and notes. Also i6 Ind. 105 ; 22 Ind. 204. 



ARTICLE 9— FOREIGN CORPORATIONS. 



6351. Insurance companies. 6354. Telephone companies. 

6351^. Laws of other States. 6355. Sleeping car companies. 

6353. Express companies. 6356. Bridge and ferry companies. 

6353- Telegraph companies. 

[1891, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6351. Insurance companies. 6"]. Every insurance company 
not organized under the laws of this State, and doing business 
therein, shall, in the months of January and July of each year, 
report to the auditor of state, under oath of the president and 
secretary, the gross amount of all receipts received in the State 
of Indiana on account of insurance premiums for the six months 
last preceding, ending on the last day[s] of December and June of 
each year next preceding, and shall, at the time of making such 
report, pay into the treasury of the State the sum of three dol- 
lars on every one hundred dollars of such receipts, less losses 
actually paid within the State. And any such insurance company 
failing or refusing, for more than thirty days, to render an accu- 
rate [account] of its premium receipts, as above provided, and 
[to] pay the required tax thereon, shall forfeit one hundred dollars 
for each additional day such report and payment shall be delayed, 
to be recovered in an action in the name of the State of Indiana, 
on the relation of the auditor of state, in any court of compe- 
tent jurisdiction. And it shall be the duty of the auditor of 
state to revoke all authority of any such defaulting company to do 
business within this State. (83.) 

I. An action against an insurance company for a penalty or to collect taxes 
due from it may be brought in the name of the State, or upon the relation of 
the auditor or attorney-general of the State, 115 Ind. 257. 

51 



§§ 6351^5 6352] TAXATION. . [802 

2. The State may impose m^oxi foreign insurance companies, as a condition 
of coming into or doing business within its territory, any terms, conditions and 
restrictions that are not repugnant to the constitution and laws of the United 
States. It may impose the same tax upon them that their respective native 
States impose upon any insurance company of this State doing business in such 
other State although the rate thus charged is greater than is charged local 
domestic companies in this State, 115 Ind. 257, 291; § 6351a. But such retalia- 
tory insurance law does not apply to cities and towns, 115 Ind. 291. 

[1877, p. 65. Approved and in force March 3, 1877.] 

Sec. 6351^. Laws of other States. 3. When, by the laws of any 
other State, any taxes, fines, penalties, licenses, fees, deposits of 
money or securities, or other obligations or prohibitions are iniv 
posed upon insurance companies of this or other States, or their 
agents, greater than are required by the laws of this State, then the 
same obligations and prohibitions, of whatever kind, shall, in like 
manner for like purposes, be imposed upon all insurance companies 
of such States and their agents. All insurance companies of other 
nations, under this section, shall be held as of the State where 
they have elected to make their deposit and estabhsh their prin- 
cipal agency in the United States. [R. S. 1881, § 3773.] 

See § 6351, notes. 

1. This section is constitutional; and money due under it maj'be recovered 
in the name of the State or upon the relation of the attorney -general or auditor 
of the State, 115 Ind. 257, 291, 596; 29 Kan. 672. In such an action the statutes 
of other States referred to must be pleaded and proved, 115 Ind. 257. * 

2. This section has no application to cities or towns, artd does not authorize 
them to recover from foreign insurance companies, for the use of its fire depart- 
ment, a per cent, of the premiums received from risks taken upon property 
within the municipality, as provided by the laws of the States where such com- 
panies were incorporated, or where, being organized abroad, it has its principal 
agency, as the entire regulation of such companies and the collection of taxes 
therefrom are committed by the laws of the State to the state officers, 115 Ind. 
291. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6352. Express companies. 6'^. Any joint stock association, 
company or corporation incorporated under the laws of any other 
State conveying to, from or through this State, or any part thereof, 
money, packages, gold, silver, plate or other articles by express 
or contract with any railroad company or the managers, lessees, 
agent, or receiver thereof not including railroad companies engaged 
in the ordinary transportation of merchandise and property in this 
State, shall be deem.ed to be an express company, and every such 
express company shall annually, between the first day of April 
and the first day of May, make and deliver to the auditor of state 
a statement verified by the oath of the officer or agent making 
such report, showing the entire receipts of each agent of such 
company doing business in this State for the year then next pre- 
ceding the first day of April for and on account of such company 
including its proportion of gross receipts for business done by such 
company in connection with other companies : Provided, That the 



803] FOREIGN CORPORATIONS. . [§^353 

amount which any express company actually pays to the railroads 
within this State for the transportation of their freight within this 
State and the amount of wages paid to employes within this State 
and the amount paid for the purchase ol tangible property within 
this State, may be deducted from the gross receipts of such com- 
pany as above ascertained: And, provided JurtJiei\ That nothing 
herein contained shall release such express companies from the 
assessment and taxation of their tangible property in the manner 
that other tangible property is assessed and taxed. Such company 
making statement of such receipt shall include as such all sums 
earned or charged of the business of such preceding year whether 
actually received or not, such statement shall contain an abstract 
of the amount received in each county and the total amount re- 
ceived for all the counties. In case of the failure or refusal of 
such express company to make such statement before the first day 
of r\Iay it shall then be the duty of each local agent of such express 
company within this State annually between the first day of May 
and the first day of June to make out and forward to the auditor 
of state a similar verified statement of the gross receipts of his 
agency for the year then next preceding the first day of April. 
When such statement is made such express company shall at the 
time of making the same, pay into the treasury of the State the 
sum of one dollar on each one hundred dollars of such receipts. 
And any such express company failing or refusing for more than 
thirty days after the first day of June in each year to render an 
accurate account of its receipts in the manner above provided and 
to pay the required tax thereon, shall forfeit one hundred dollars 
for each additional day such statement and payment shall be de- 
layed to be recovered by an action in the name of the State of 
Indiana on the relation of the auditor of state in any court of com- 
petent jurisdiction, and the attorney-general shall conduct such 
prosecution ; and such company, corporation, or association so 
failing or refusing, shall be prohibited from carrying on said busi- 
ness in this State until such payment is made. (84.) 

Sec. 6353. Telegraph companies. 69. Any joint stock associa- 
tion or corporation engaged in transmitting to, from, through, or 
in this State telegraphic messages, and incorporated under the laws 
of any other State, shall be deemed and held to be a telegraph 
company and every such telegraph company shall annually between 
the first day of April, and the first day of May, make and deliver 
to the auditor of state, a statement verified by the oath of the offi- 
cer, or agent of such company making such report, showing the 
entire receipts of each agent of such company doing business in 
this State for the year then next preceding the first day of April 
for and on account of such company including its proportion of 
gross receipts for business done by such company in connection 
with the lines of other companies: Provided, That nothing herein 
contained shall release such telegraph companies from the assess^ 



§ 63541 . TAXATION. [804 

ment and taxation of their tangible property in this State in the 
manner that other tangible property is assessed and taxed, such 
company in making statement of such receipts shall include as 
such all sums earned or charged of the business for such preceding 
year, whether actually received or not. Such statement shall con- 
tain an abstract of the amount received in each county and the 
total amount received for all the counties. In case of the failure 
or refusal of such telegraph company to make such statement 
before the first day of May, it shall then be the duty of each local 
agent of such local telegraph company within this State annually 
between the first day of May and the first day of June to make 
out and forward to the auditor of state a similar verified statement 
of the gross receipts of his agency for the year then next preced- 
ing the first day of April. When such statement is made such 
telegraph company shall at the time of making the same pay into 
the treasury of the State, the sum of one dollar on each one hun- 
dred dollars of such receipts, and any such telegraph company 
failing or refusing for more than thirty days after the first day of 
June in each year to render an accurate account of its receipts in 
the manner above provided, and to pay the required tax thereon 
shall forfeit one hundred dollars for each additional day such state- 
ment and payment shall be delayed, to be recovered by an action 
in the name of the State of Indiana, on the relation of the auditor 
of state in any court of competent jurisdiction, and the attorney- 
general shall conduct such prosecution, and such company, cor- 
poration or association so failing or refusing shall be prohibited 
from carrying on said business in this State until such payment is 
made. (85.) 

Sec. 6354. TeiepKone companies. 70, Every telephone company 
doing business in this State and incorporated under the laws of 
any other State, shall annually between the first day of April and 
the first day of June report to the auditor of state under oath of 
an officer or agent of such corporation the gross amount of all their 
receipts in the State of Indiana for the year immediately preceding 
the first day of April and shall at the time of making such report, 
pay into the treasury of the State the sum of twenty-five cents, on 
every one hundred dollars of such receipts, and any such telephone 
company failing or refusing for more than thirty days after the first 
day of June to render an accurate account of such gross receipts, 
as above provided, and pay the required tax thereon shall forfeit 
ten dollars for each additional day such report and payment shall 
be delayed, to be recovered in an action in the name of the State 
of Indiana, on the relation of the auditor of state, in any court of 
competent jurisdiction, and the attorney-general shall conduct 
such prosecution; and such telephone companies so failing or 
refusing shall be prohibited from carrying on said business until 
such payment is made. {^6.) 



805] FOREIGN CORPORATIONS. L§§^355'^35^ 

Sec. 6355. Sleeping car companies. 71. Every joint stock asso- 
ciation, company, or corporation, incorporated under the laws 
of any other State, and conveying to, from and through this 
State, or any part thereof, passengers and travelers in palace cars, 
drawing room cars, sleeping cars, or chair cars, on contract Avith 
any railroad company, or the managers, lessee, agent or receiver 
thereof, shall be held and deemed to be a sleeping car company; 
and every such sleeping car company doing business in this State 
shall, annually, between the first day of April and the first day of 
June, report to the auditor of state, under oath of an officer or 
agent of such corporation, the gross amount of all their receipts 
within or without the State, for fares earned or business done by 
such company within this State, for the year then next preceding 
the first day of April of the current year; and in computing such 
gross receipts, the same shall be in the proportion that the distance 
traveled in this State bears to the whole distance paid for. At the 
time of making such report, such company shall pay into the treas- 
ury of the State the sum of two dollars on every one hundred dol- 
lars of such receipts, and every sleeping car company failing or 
refusing for more than thirty days after the first day of June, to 
render an accurate account of such gross receipts, as above pro- 
vided, and pay the required tax thereon, shall forfeit twenty-five 
dollars for each additional day such report and payment shall be 
delayed, to be recovered in an action in the name of the State of 
Indiana, on the relation of the auditor of state, in any court of 
competent jurisdiction, and the attorney-general shall conduct such 
prosecution, and such sleeping car companies so failing or refusing 
shall be prohibited from carrying on such business until such pay- 
ment is made ; and all railroad companies in this State, or the 
persons managing or operating the same, are prohibited from 
hauling any cars of any sleeping car company while so in default; 
and for each violation of this prohibition shall be liable to pay to 
the State of Indiana the sum of one hundred dollars, to be recov- 
ered in the proper action by the State. And it shall be the duty 
of the attorney-general, at the request of the auditor of state to 
prosecute all such suits. (87.) 

Sec. 6358. Bridge and ferry companies. 72. Every bridge com- 
pany and ferry company not organized under the laws of this State, 
and doing business therein, shall, between the first day of April and 
the first day of June of each year, report to the proper assessor of 
the county in which any part of the business of such company is 
carried on, under the oath of the agent or superintendent of such 
company doing business in said county, the gross amount of all 
moneys received by such agent or superintendent on account of 
such company, and for the year then next preceding the first day 
of April of the current year ; and failing or refusing to do so, such 
company shall forfeit and pay one hundred dollars for each addition- 



§6357J TAXATION. [806 

al day such report is delayed beyond the first day of June, to be 
sued for and recovered as in case of express, telegraph, and tele- 
phone companies : Provided, Such report shall also contain a list 
of the tangible property of such company or corporation with- 
in the county, and the true cash value thereof. The amount of 
such gross receipts shall be reported by such assessor to the county 
auditor, and shall be, by such auditor, entered, together with the 
true cash value of such tangible property, upon the tax duplicate 
of the proper county ; and the taxes so assessed shall be a lien up- 
on the property of such companies until the same are paid. (88.) 



ARTICLE 10— DOMESTIC CORPORATIONS. 

SEC. SEC. 

6357. Sworn statement. 6359. Failure — Dutj- of auditor of state. 

6358. Schedule. 

[1891, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6357. Sworn statement. 73. Every street-railroad, water- 
works, gas, manufacturing, mining, gravel-road, plank-road, sav- 
ings-bank, insurance, and [all] other associations incorporated 
under the laws of this State (other than railroad companies and 
those heretofore specifically designated) shall, by its president or 
other proper accounting officer, between the first day of April and 
the first day of June of the current year, in addition to the other 
property required by this act to be listed, make out and deliver to 
the assessor a sworn statement of the amount of its capital-stock, 
setting forth particularly — 

Fii'st. The name and location of the company or association. 

Second. The amount of capital-stock authorized, and the num- 
ber of shares in[to] which such capital-stock is divided. 

Third. The amount of capital-stock paid up. 

Fourth. The market value (or, if no market value, then the 
actual value) of the shares of stock. 

Fifth. The total amount of indebtedness, except the indebted- 
ness for current expenses, excluding from such expenses the 
amount paid for the purchase or improvement of property. 

Sixth. The valuation of all tangible property. 

Seventh. Th'e difference in value between all tangible property 
and the capital-stock. 

EightJi. The name and value of each franchise or privilege 
owned or enjoyed by such corporation. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of state. In [any] 
case of failure or refusal to make [the] report, such corporation 
shall forfeit and pay one hundred dollars for each additional day 
such report is delayed beyond the first day of June, to be sued 
[for] and recovered, in any proper form of action, in the name of 



Soy] DOMESTIC CORPORATIONS. [§§6358,6359 

the State o{ Indiana, on the relation of the prosecuting attorney. 

And such prosecuting attorney, in every case of conviction, shall 

be allowed a docket-fee of ten dollars, to be taxed as costs in such 

action. (S9.) 

This section contains a snihcient notice to the corpoj-ation that the board will 
act on its statement and assess the stock. If the entire capital -stock is invested 
in tangible property, the stock can not be assessed, 26 N. E. Rep. 672. 

Sec. 635S. Schedule — Valuation. 74. Such statement shall be 
scheduled by the assessor, and such schedule with the statement 
so scheduled, shall be returned by the assessor to the county audi- 
tor. The auditor shall annually, on the meeting of the county 
board of review lay before said board the schedule and statements 
herein required to be returned to him and said board shall value 
and assess the capital-stock and all franchises and privileges of 
such companies or associations in the manner provided in this act, 
and the said auditor shall compute and extena the taxes for all 
purposes on the respective amounts so assessed, the same as may 
be levied on other property in such towns, cities or other localities 
in which such companies or associations are located. In all cases 
where the capital-stock of any such corporation exceeds in value . 
that of the tangible property listed for taxation, then such capital- 
stock shall be subject to taxation upon such excess of value; 
where no tangible property is returned or found, and the capital- 
stock has a value, it shall be assessed for its true cash value. But 
where the capital-stock or any part thereof is invested in tangible 
property, returned for taxation, such capital-stock shall not be as- 
sessed to the extent that is so invested. Every franchise or privi- 
lege of any such corporation shall likewise be assessed at its true 
cash value. Where the full value of any franchise is represented 
by the capital-stock listed for taxation then such franchise shall 
not itself be taxed ; but in all cases where the franchise is of greater 
value than the capital-stock, then the franchise shall be assessed at 
its full cash value, and the capital-stock in such case shall not be 
assessed, (90.) 

Sec, 6359. Failure — Duty of auditor of state. 75. In case of 
the failure or refusal of the persons, joint-stock associations, com- 
panies, or corporations, their officers, agents, or employes, speci- 
fied in the preceding section[s], to make and return the statements 
and reports therein provided for, the auditor of state shall make 
out such returns, statements, and valuations from the best informa- 
tion he can obtain; and for that purpose he shall have power to' 
summon and examine, under oath, any person whom he may be- 
lieve to have a knowledge thereof. And he shall add to such val- 
uation twenty-five per centum thereon. (91.) 



§§ 6360, 636i] 



TAXATION. 



[808 



ARTICLE II— RAILROADS. 



6360. 
6361. 
6362. 



Time of listing. 


6367. 


Sworn statement. 


6368. 


Railroad track. 


6369. 


Value, how apportioned. 


6370. 


Rolling-stock. 


6371. 


Other personalty. 


6373. 


Other realty. 


6372a 



Inventory by company. 

Auditor's return to assessor. 

Sworn statement. 

Penalty for neglect. 

Report to state board of equalization. 

Valuations entered. 

Lien for taxes and debts. 



[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6360. Time of listing. ']6. Every person, company, or cor- 
poration, owning, managing, operating, or constructing a railroad 
in this State, shall cause all [its] taxable property, not including 
property specifically taxed, to be listed, with reference to its amount, 
kind, and value, on the first day of April of the year in which it is 
listed. (92.) 

Formerly a railroad company of this State leasing the railroad running 
through or into this State of a foreign company could not be taxed on the stock 
of such foreign company ; nor could such foreign companj^ be assessed with its 
road-bed or personal property, for the statute then required all such to be listed 
as corporation stock, i7lnd.38o. Valuation under old law, 25 Ind. 177. The 
rules for assessing the property of individuals do not apply to railroads, 69 Ind. 
71. 



6361. Sworn statement, 'j'j. Between the first day of April and 
the first day of June of the year 1892, and at the same time in each 
year thereafter, when required by the county auditor[s], any person, 
company or corporation, so owning, managing, operating, or con- 
structing a railroad, shall make and file with the county auditor[s] 
of the respective counties in which the railroad may be located, a 
statement or schedule, verified by the oath of such person, or the 
president and secretary of such corporation, showing the property 
held for right-of-way, and the length of the main [track] and all 
side or second tracks and turnouts in such county, and in each city 
or town in the county through or into which the road may run, and 
describing each tract of land, other than a city or town lot, through 
which the road may run, in accordance with the United States or 
other surveys, giving the width and the length of the strip of land 
held in each tract, and the number of acres thereof They shall 
also state the value of improvements and stations located on the 
right-of-way. New companies shall make such statement[s] in 
April next after the location of their roads. When such state- 
ment[s] shall have been once made, it shall not be necessary to re- 
port the discription as hereinbefore required, unless directed so to 
do by the county auditor[s] ; but the company shall, during the 
month of April, annually, report the value of such property, by the 
description set forth in the next section of this act, and note all 
additions or changes in such right-of-way as shall have occurred. 
(93.) 



809] RAILROADS. [§§ 6362 6364 

Sec. 6362. Railroad track, j^. Such right-of-way, including 
the superstructures, main [track], side or second track[s], and 
turnouts, turntable[s], telegraph poles, wires, instruments, and 
other appliances, and the stations and improvements of the railroad 
company on such right-of-way (excepting machinery, stationary 
engines, and .other fixtures, which shall be considered personal 
property), shall be held to be real estate for the purpose of taxa- 
tion, and denominated " railroad track," and shall be so listed and 
valued, and shall be described in the assessment thereof as a strip 
of land extending on each side of such railroad track, and embrac- 
ing the same, together with all the stations and improvements 
thereon, commencing at a point where such railroad track crosses 
a boundary line in entering the county, township, city, or town, 
tending to the point where such track crosses the boundary line 
leaving such county, township, city, or town to the point of termi- 
nation in the same, as the case may be, containing acres, more 

or less (inserting name of county, township, city, or town, or bound- 
ary line of same, and number of acres and length in feet) ; and when 
advertised or sold for taxes, no other description shall be necessary 
to convey a good title to the purchaser. (94.) 

The railroad track and rolling-stock is assessed and valued by the state board 
of equalization, 108 Ind.144; § 6410, The right of way, with the improvements 
upon it, is to be valued and assessed as "railroad track," 108 Ind. 144. The 
"right of way" is not limited to a strip of land of any. definite width at all 
points on the line of railroad, but includes lands and lots acquired for necessary 
side-tracks and turnouts, and the improvements thereon in the way of coal- 
sheds, freight houses, water-tanks, repair shops, round-houses, and the like, 108 
Ind. 144; 50 Wis. 71; 98 111. 350. Practice under the old law, 69 Ind. 71. Rail- 
road iron, possibly, not laid down, must be assessed under these sections, and 
can not be assessed by the county board of review, iiS Ind. 214. 

Sec. 6303, Value, how apportioned. 79. The value of [the] ''rail- 
road track" shall be listed and taxed in the several counties, town- 
ships, cities, or towns in the proportion that the length of the main 
track in such county, township, city, or town bears to the whole 
length of the road in this State ; except the value of the side or 
second track[s], and all the turnouts, and all station houses, depots, 
machine shops, or other buildings belonging to the road, which 
shall be taxed in the county, township, city, or town in which the 
same are located. (95-) 

Sec. 6364. Rolling-stock. 80. The movable property belonging 
to a railroad company shall be held to be personal property, and 
denominated, for the purpose of taxation, " rolling-stock." Such 
rolling-stock shall be listed and taxed in the several counties, town- 
ships, cities, and towns, in the proportion that the main track used 
or operated in each county, township, city, or town bears to the 
length of the main track used or operated by such person, com- 
pany, or corporation, whether owned, operated, or leased by him or 
them, in whole or in part. (96.) 



g§ 6365 6367] TAXATION. [810 

The legislature has the power to treat rolling-stock either as real or per- 
sonal property for the purposes of taxation, 25 Ind. 177. Rolling-stock is val- 
ued and assessed bv the state board of review, 108 Ind. 144; § 6410. 

Sec. 6365. Otlier personalty. 8i. All [other] personal property 
of any railroad, except that specifically taxed and including the 
tools and material for repairs, machinery, fixtures, sPnd. stationary' 
engines, shall be listed and assessed in the county, township, city, 
or town wherever the same may be on the first day of April of 
each year. ( 97.) 

Sec. 6366. Other realty. 82. All real estate of any railroad com- 
pany, other than that denominated ''railroad track," with all the 
improvements thereon, shall be listed as lands and lots, as the case 
may be, in the county, township, town, or city where the same 
are located. In describing such real estate wherever a railroad 
company shall have made or makes and records a plat of any con- 
tiguous lots or parcels of land belonging to it, the sam^e may be 
described as designated on such plat. (98.) 

Sec. 6367. Inventory by company. 83. Between the first day of 
April and the first day of June of each year, every person, com- 
pany, or corporation, owning, constructing, or operating a railroad 
in this State, shall return to the county auditor[s] a list or schedule, 
verified by the oath of such person so owning, constructing, or 
operating, if an individual (or, if a company or corporation, by 
the oath of the superintendent or secretary of such company or 
corporation), which shall contain — 

First. A full and correct detailed inventory of all the rolling- 
stock belonging to, or leased, hired, used, or operated by, such 
company, and which shall distinctly set forth the number of loco- 
motives and tenders of all classes, passenger cars of all classes, 
sleeping, chair, and dining cars, express cars, baggage cars, horse 
cars, cattle cars, coal cars, platform cars, wrecking cars, freight 
cars, flat cars, pay cars, hand cars, tank or oil cars, and all other 
kinds of cars; and the true cash value thereof on the first day of 
April of the current year shall be set opposite each of them. Such 
list or schedule shall also set forth the number of miles of main 
track on which such rolling-stock is used in the State of Indiana. 
For the purpose of taxation, such rolling-stock leased or hired 
from persons or corporations other than railroad companies shall 
be deemed the property of the railroad company leasing the same, 
and for that purpose shall be valued at such proportion of the full 
value thereof, as the time during which the same is used on such 
railroad during any year bears to the whole year. 

Second. Such list^shall, also, contain a full and correct inventory 
of all the other personal property of such railroad company not 
specifically taxed, including the tools and materials for repairs, the 
machinery, fixtures, and stationary engines ; and such property 



8ll] RAILROADS. [§§ 6368, 6369 

shall be classified and separated into the particular county [coun- 
ties], township [townships], cities, and towns, Avherein the same 
may be on the first day of April, with the true cash value thereof 
on the first day of April of the current year. 

Third. Such list shall also contain an inventory of all the real 
estate (other thaii that denominated "railroad track") owned by 
the said railroad company on the first day of April of the current 
year. Such property shall also [all] be listed, with reference to 
the amount, kind, and value, on the first day of April of the year 
in which it is listed. (99.) 

Sec. 6368. Auditor's return to assessor. 84, The county auditor, 
as soon as he receives such list, shall return to the proper assessor 
a copy of so much of said list as is contained in the second and 
third specifications thereof; and such property shall be listed and 
assessed by such assessor. Such property shall be treated in all 
respects, in regard to assessment and equalization, the same as 
other simillar property belonging to individuals, except that it 
shall be treated as property belonging to railroads, under the terms 
•'lands," 'Mots," and "personal property." (100.) 

Sec. 6369. Sworn statement. 85. At the same time that the lists 
or schedules as [are] hereinbefore required to be returned to the 
county audiLor[s,] the person, company, or corporation running, 
operating, or constructing any railroad in this State, shall, under 
the oath of such person, or the secretary or superintendent of such 
company or corporation, return to the auditor of state sworn state- 
ments or schedules as follows : 

First. Of the property denominated "railroad track," giving 
the length of the main [track,] and side or second tracks, and 
turnouts, and showing the proportions in each county and town- 
ship, and the total in the State. 

Second, The rolling-stock, Avhether owned or hired, giving the 
length of the main track in each county, and the entire length of 
the road in this State. 

TJiird. Showing the number of ties in track per mile ; the 
weight of iron or steel per yard used in the main and side tracks, 
what joints or chairs are used in track; the ballasting of road, 
whether gravel, stone, or dirt; the number and quality cf build- 
ings or other structures on " railroad track "; the length of time 
iron or steel in track has been used; and the length of time the 
railroad has been built. 

Fourth. A statement or schedule showing — (i) The amount 
of capital-stock authorized, and the number of shares into w^hich 
such capital-stock is divided; (2) the amount of capital-stock paid 
up ; (3) the market value (or, if no market value, then the actual 
value) of the shares of stock; (4) the total amount of all indebted- 
ness, except for current expenses for operating the road ; [and] 



§§6370 6372] TAXATION. [812 

(5) the total listed valuation of all its tangible property in this 
State. 

Such schedule shall be made in conformity to such instructions 
and forms as may be prescribed by the auditor of state. (loi-) 

Sec. 6370. Penalty for neglect. S6. If any person, company, or 
corporation, owning, operating, or constructing any railroad, shah 
neglect or refuse to return to the county auditor[s] the statements 
or schedules required to be returned to them, the property so to 
be returned to them, and assessed by the assessors, as above speci- 
fied, shall be listed and assessed as other property. In case of 
failure to make returns to the auditor of state, as hereinbefore pro- 
vided, the auditor of state, with the assistance of the county audi- 
tors and assessors (when he shall require such assistance), shall 
ascertain the necessary facts, and lay the same before the state 
board of tax commissioners. In case of failure to make such state- 
ment, either to the county auditors or auditor of state, such cor- 
poration, company, or person shall forfeit, as a penalty, not less 
than one thousand dollars nor more than five thousand dollars for 
each day's omission after the first day of June of each year, to 
be recovered, in any proper form of action, in the name of the 
State of Indiana, on the relation of the attorney-general, and paid 
into the state treasury^ Such attorney-general shall conduct such 
prosecution, and be entitled to ten per centum on the amount of 
the judgment so recovered and paid in. (102.) 

Sec. 6371. Report to state board of equalization. Sy. The audi- 
tor of state shall, annually, on the meeting of the state board of 
tax commissioners, lay before said board the statements and sched- 
ules herein required to be returned to him ; and said board shall 
assess such property in the manner hereinafter provided. , (103.) 

Equalizations and assessments of railroad property, subsequent to 1S59, and 
prior to December 21, 1865, were legalized by an act of 1865 (S., p. 121). 

Sec. 6372. Valuations entered. S8. The county auditor shall 
enter the railroad property of all kinds, as listed for taxation, upon 
the proper tax-dupHcate, and shall enter the valuation a? assessed, 
corrected, and equalized in the manner provided by this act; and 
against such assessed, corrected, or equalized valuation, as the case 
may require, the county auditor shall compute and extend all taxes 
for which said property is liable. And the county treasurer shall 
collect the taxes charged against said railroad property, and pay 
over and account therefor in the same manner as other taxes are 
collected and accounted for. (104.) 

Cities and towns obtain from the county auditor the valuation of so much 
per mile of the railroad as lies within their limits. The taxation by the city or 
town must be by the mile as assessed by the state board of tax commissioners 
even though large and costly buildings are built on the right of way within such 
city or town. Thus if there are two miles of right of way within the city and 



813] BUILDING ASSOCIATIONS. [§§ ^372(3;, 63/3 

the assessment br the state board is $10,000 per mile, then the city or town can 
lew a tax onlv on $20,000 worth of track, although large and costly buildings 
many times that amount in value are situated upon such right of Vv^ay. 



[i R. S. 1S52, p. 409. Approved May 11, 1S52, and in force May 6, 1853.] 

Sec. 6372^. Lien for taxes and debts. 26. The State shall have 
a lien upon all railroads of such corporations, and of their appur- 
tenances and stock therein, for all penalties, taxes, and dues which 
may accrue to the State from such corporations; which lien of the 
State shall have precedence of all demands, judgments, or decrees 
against said corporations. And the citizens of this State shall have 
a lien upon all personal property of said corporations, to the amount 
of one hundred dollars, for all debts originally contracted within 
this State ; which, after said lien of the State, shall take precedence 
of all other debts, demands, judgments or decrees, liens or mort- 
gages against such corporations. [R. S. 1881, § 3919.] 



ARTICLE 12— BUILDING ASSOCIATIONS. 

SEC. 

6373. Statement — Tax. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6373. Statement — Tax. 89. Building, loan-fund and saving 
associations shall be listed and assessed in the following manner: 
Before the first day of June of each year, the secretary of every 
building, loan and savings association shall file with the auditor of 
the county in which such association was organized, a duplicate 
statement verified by said secretary, showing the amount paid into 
said association by shareholders upon shares o( stock issued by it 
up to the first day of April preceding and then outstanding, and 
also the amount loaned up to said date, to shareholders, and 
secured by mortgage upon real estate listed for taxation. And 
the auditor shall deliver said statement to the proper assessor, 
who shall proceed to assess said association for taxation with the 
amount shown to have been paid into said association up to said 
first day of April upon outstanding shares of stock, less the amount 
shown by the statement to have been loaned to shareholders upon 
said mortgage security so listed for taxation, and neither said asso- 
ciation nor the shareholders therein shall be liable to other taxation 
upon said shares of stock. (105.) 



6374] 



TAXATION. 



[S14 



ARTICLE 13— DUTIES OF TOWNSHIP ASSESSOR. 



-Vacancies. 



SEC. 

6374. Election— Oath— Bond- 

6375. Deputies. 

6376. Compensation. 
6376a. Same continued. 
b^-j6d. Laws repealed. 

6377. Auditor to deliver list of lands to as- 

sessor — Blanks. 

637S. List to owners — Notice. 

6379. Realty, how valued. 

6350, Buildings on rights-of-way. 

6351. Mines and quarries. 
d^b^. Assessor's powers. 

6,83. Land — Rule as to quantity. 

63S4. Values, how affixed. 



SEC. 

6355. Assessor's return-book. 

6356. Assessor's oath. 

6387. Memorandum to owner. 

6388. Quadrennial assessments. 

6389. Tabular list to auditor — Contents. 

6390. Correction of errors. 

6392. City and town plats. 

6393. Omitted property' — Assessor's duty. 

6394. Irregularities not to vitiate. 

6395. Assessor to return statements. 

6396. Assessor failing to swear parties — Pen- 

alty. 
6396^. County assessor. 
6396^. Duties of county assessor. 



[1S91, p. 199. Approved and in force March 6, 1891.] 

Sec. 6374. Election — Oath — Bond — Vacancies. 90. For the pur- 
pose of listing and assessing all property for taxation, there shall 
be elected at the township election in the year 1894, and every 
four years thereafter, in each township of the several counties in 
this State, an assessor for such township, who shall hold his office 
for the term of four years from the first Monday in August, and 
untl his successor is elected and qualified. Within ten days after 
the beginning of his term, he shall give bond, with at least two good 
and sufficient freehold sureties, to the acceptance of the county 
auditor, in the sum of three thousand dollars, payable to the State 
of Indiana, and conditioned for the faithful and impartial discharge 
of his duties according to law, and shall take and subscribe an oath 
or affirmation, to be indorsed on his bond, that he will faithfully, 
honestly, and impartially discharge the duties of his office to the 
best of his skill and ability; and the bond, so indorsed, shall be 
deposited with the county auditor; and the said auditor is hereby 
authorized to administer the oath of office aforesaid. If such bond 
and oath are not given and filed in the county auditor's office with- 
in said tea days, the office shall be vacant, and the county auditor 
shall at once fill such vacancy by appointment ; and such appointee 
shall give the bond and take the oath above required. And if, 
from any other cause, a vacancy should occur in said office in any 
township, at any time, the county auditor shall fill such vacancy 
by appointment; and the person so appointed shall qualify as 
herein required. All township assessors last elected or appointed 
shall continue in office until the next township election, and until 
their successors are elected and qualified under this act, at the 
same rate and limit of compensation as herein provided. Persons 
holding the office of township assessor on the taking effect of this 
act shall not be eligible to said office at said township election in 
1894; and hereafter no person shall be eligible to the office of 
township assessor more than four years in any period of eight 
years. The oath of office to be taken by said assessor and in- 
dorsed upon his bond shall be in the words following : 



8 1 5] TOWNSHIP ASSESSORS. [§§ 6375 — 6376^ 

State of Indiana, County of . . . , ss. 
I, . . . . do solemnly swear that I will support the constitution 
of the United States, and the constitution of the State of Indiana, 
that I will faithfully, impartially, and honestly discharge the duties 
of my office as township assessor, particularly that I will assess all 
property assessed by me at its true cash value, as such value is 
defined in section 53 of the act concerning taxation, according to 
my best knowledge and judgment, so help me God. 



Subscribed and sworn to before me this , , . day of . . . , 
189 . . 

, County Auditor. 

All deputy assessors shall be sworn in like manner. (106.) 

In cities the office has been abolished, and the assessment of property taken 
from the office of the county auditor, § 3262. The office in towns is abolished, 
§ 3362. 

Sec. 6375. Deputies. 91. Whenever a[ny] township assessor 
shall be unable to complete the duties required of him within the 
time designated by law, he may appoint one or more suitable and 
competent persons as deputies, to assist him in making the assess- 
ment ; and he may designate the portion[s] of the township, town, 
or city in w^hich they shall act. Such deputies shall make their 
return to the proper assessor. (107.) 

Sec. 6376. Compensation. 92. For their services, the township 
assessors shall receive as compensation two dollars per day for the 
time actually employed in the duties of their office, not exceeding 
sixty days in any one year, to be paid to them from the county 
treasury, upon the warrant of the county auditor, and they shall 
receive no extra allowances for services. Their deputies shall also 
receive two dollars per day for each day they are actually em- 
ployed : Provided, That nothing in this section shail be taken to 
alter or repeal any of the provisions of an act fixing the salaries 
of county commissioners, township assessors and trustees, approved 
March 6, 1889. [§6376^.] (108.) 

[1889, p. 186. Approved and in force March 6, 1889.] 

Sec. 6376^. Same continued. 2. That each trustee of any town- 
ship in this State, and each assessor of any township in this State, 
shall receive for the time he is necessarily engaged in the discharge 
of his duties, the sum of two dollars per day, and this shall be full 
compensation for all services that they shall in any capacity and in 
any manner perform : Provided, That i.i townships containing a 
population of seventy-five thousand, as shown by the last census, 
each trustee and assessor shall each receive the sum of eighteen 
hundred dollars per annum, and such sum shall be deemed to be 
payment in full for all services of whatever kind they may perform 



§§ ^Z^^b, 6377] TAXATION. [816 

as such trustees or assessors : Provided, further, That In townships 
having a population of over twenty-five thousand, as shown by the 
last census, such trustee shall receive not less than one thousand 
dollars nor more than fifteen hundred dollars per annum, which 
amount is to be determined by the board of county commissioners 
of the county in which said township is situate, and such sum 
shall be deemed to be payment in full for all services of whatever 
kind they may perform as such trustee. Such township trustees 
and assessors shall keep their office open on each day of the year 
except Sundays and legal holidays. [El. Sup. § 1977.] 

Sec. 6376^. Laws repealed. 3. All laws and parts of laws in con- 
flict with the provisions of this act are hereby repealed. [El. Sup. 

§ 1978.] 

[1891 S., p. 199. Approved and in force March 6, 1891.] 

Sec. 6377. Auditor to deliver list of lands to assessor — Blanks. 
93. The county auditor of each county shall, on or before the 
first day of April in each year in which [the] realty is assessed, 
make out and deliver to the assessors, by civil townships, lists of 
all lands, [and] town and city lots entered on the duplicate of the 
preceding and present year, noting thereon all transfers which may 
have been made subsequent to the making out of such duplicate; 
and shall also enter thereon all new entries and other lands, and 
city, town, and village lots lying within his county, which may 
come to his knowledge and not previously entered for taxation. 
And in so doing, when a whole section, half section, quarter sec- 
tion, or half-quarter section appears to belong to one owner, it 
shall be described in one description and shall be listed as one 
tract ; and when all the lots in one block appear to belong to one 
owner, they shall be described in one description and listed as one 
block ; [and] when several lots in the same block shall belong to 
the same ow];ier, they shall, as far as practicable, be included in one 
description. And in making up the tax duplicates, it shall be the 
duty of the county auditors, as far as practicable, to preserve and 
perpetuate such consolidated descriptions. And it shall be the 
duty of said auditor to furnish the assessor[s] with all blanks nec- 
cessary in the discharge of [their] his official duties ; and he shall 
also, where the same have not been already prepared, prepare plats 
of each civil township of his county, divided into sections and quar- 
ter sections, and grant and other governmental subdivisions, and 
deliver the same to him [them] with said blanks; and it shall be 
the duty of said assessor[s] to designate, in pencil, the lands of 
each owner on such plats. When such plats have been once pre- 
pared, they shall be carefully preserved by the county auditor, to 
be used, whenever practicable, in future assessments. (109.) 

I. Assessments of property and tax collections prior to March 3, 1^59, were 
legalized by an act of 1859 (p. 225); appraisements of real estate made in 1864 
were legalized by an act of 1865 (S., p. 172). 



817] TOWNSHIP ASSESSORS. [§§6378,63/9 

2. The auditor is not entitled to compensation for preparing the books and 
blanks for assessors, 84 Ind. 560. 

Sec. 6378. List to owners — Notice. 94. The assessor shall call 
upon each and every person residing in his township for a list of 
all lands, city, village, and town in-lots and out-lots, owned by 
such person or persons, lying within his township, which may be 
subject to taxation, which list shall particularly set forth the names 
of the owners ; the number of acres of land in each tract, lot, sec- 
tion, or subdivision thereof; the range, township, section, quarter 
section, tract, or lot, or part thereof, or the number of the entry, 
location, or survey, as the nature of the general or particular sur- 
vey may require ; and if the same can not be described by the 
congressional survey, then it shall be described by metes and 
bounds, so as to designate and identify the same, or by reference 
to a sufficient and correct description contained in some pubHc 
record of the county, or by the number and designation as con- 
tained in some partition proceeding, identifying by book and page 
of record whenever practicable. When he makes such call, he 
must notify the person, company, or corporation of the duty to 
make out and return such list within five days. If he deems it 
necessary to obtain an accurate description of any separate lot or 
tract in his township, he may require the owner or occupant to 
exhibit all the title-papers he may have in his possession ; and' 
whenever the person called upon fails or refuses to furnish such list 
to such assessor, at his office or place of business, within five days 
after being called upon, the assessor shall make the list according 
to the best information he can obtain, and, for that purpose, he 
may examine, under oath, any person or persons whom he may 
suppose to have a knowledge thereof; and the county auditor 
shall add to such valuation, when returned, twenty-five per centum 
on the value so returned. To enable the county auditor to make 
such addition, the assessor shall enter in his return, in a column 
provided for that purpose, opposite the name of every person, 
company, or corporation required to list real estate, who has, after 
notice, failed or refused to furnish the list required, these words, 
"Failed (or refused) after notice." (no.) 

See § 3072. 

Sec. 6379. Eealty, how valued. 95. Real property shall be valued 
by the assessor as follows : Lands, and the improvements and the 
buildings thereon or affixed thereto, shall be valued at their full 
true cash value, estimated at the price they would bring at a 
fair voluntary private sale, not a forced or sheriff's sale, taking into 
consideration the fertility of the soil, the vicinity of the same to 
railroads, macadamized roads, clay roads, gravel roads and turn- 
pike roads, state or county roads, cities, towns, villages, naviga- 
ble rivers, water privileges on the same or in the vicinity of the 
same, the location of the route of any canal or canals, with any 
52 



§§6380—6383] TAXATION. [818 

other local advantages of situation. In-lots and out-lots in all 
towns, cities, or villages, with the improvements thereon or affixed 
thereto, shall be valued at their full cash value as aforesaid, taking 
into consideration all the local advantages, upon actual view of 
the premises. All lands and lots shall also be listed at such valua- 
tion, without taking into consideration any improvements; and this 
valuation, as well as the valuation with the improvements, shall 
be set down in a proper column to be left for that purpose, (i 1 1.) 

The assessment of the assessor and the equalization of the board of equaliza- 
tion is conclusive, and the auditor can not change it, 117 Ind. 410. 

Sec. 6380. Buildings on rights-of-way. 96. When a building or 
structure is^located on the right-of-way of any canal, railroad, or 
other company, leased or granted for a term of years to any other, 
the same shall be valued at such price as such building or structure 
and lease or grant would sell for at a private voluntary sale for 
cash. (112.) 

Sec. 6381. Mines and quarries. 97. In valuing any real property 
on which there is a coal or other mine, or stone or other quarry, 
the same, if the land and the mine or quarry are owned by the 
same person, shall be valued at such price as such property, in- 
cluding the mine or quarry, would sell [for] at a private voluntary 
sale for cash. Where the mine or the quarry is owned or leased 
by a person other than the owner of the land, such land shall be 
valued, exclusive of the mine or quarry, as other lands are valued; 
and the mine or quarry, and all improvements and leasehold and 
appurtenances, shall be valued separately from the land, according 
to the true cash value thereof (ii3-) 

Sec. 6382. Assessor's powers. 98. For the purpose of enabling 
the assessor to determine the value of buildings and other improve- 
ments, he is hereby required to enter (after first making known 
his intention to the owner or occupant thereof) and fully examine 
all buildings and structures of whatever kind, which are not, by 
the laws of the State, expressly exempt from taxation. (114.) 

Sec. 6383. Land — Eule as to quantity. 99. The assessor, in 
ascertaining or determining the quantity of land in the several 
tracts within his township, shall be governed by the following 
rules: Whenever the owner or person in whose name it is hsted 
shall hold, by virtue of a deed from another party or from the 
State of Indiana, or by patent from the United States for congress 
land, such deed or patent, if the quantity be therein stated, shall 
be taken and received as evidence of the quantity in the tract 
described; but if such lands shall have been surveyed subsequent 
to the survey made by the United States, and it shall be proven, 
to the satisfaction of the assessor, that any such tracts of land con- 
tain a greater or less quantity than is described in the patent or 



819] TOWNSHIP ASSESSORS. [§§6384,6385 

deed under vv'hich such lands are held, then the assessor shall 
charge the owner with the true quantity, as ascertained by such 
subsequent survey. If the owner or person in whose name any 
lands are listed within the French or Clark's Grant shall hold 
under an original entry or survey, with or without patents thereon, 
it shall be the duty of the assessor to require the said owners or 
holders to cause the same to be surveyed by the county surveyor, 
and to return the quantity under the certificate of said surveyor, 
attested by oath or affirmation, within ten days after said owners 
or holders shall have been called upon to list their lands for taxa- 
tion ; and if any such owner or holder shall refuse or neglect to 
survey and list his lands as herein provided, or if he, she, or they 
be non-residents of the township, then it shall be the duty of the 
assessor to cause such lands to be surveyed and returned to him- 
self. The expense of which [such] survey shall be paid from the 
county treasury, and be, by the auditor of the county, assessed 
against such lands in the succeeding year, and collected in the 
same manner as taxes are collected thereon : Provided, That if any 
owner or holder of lands has had the same previously surveyed, 
and shall produce to the assessor a certificate of the survey other 
than that under the original entry of said lands, such survey shall 
be taken by the assessor; or if the assessor shall be satisfied, from 
other competent evidence, adduced to him under oath or affirma- 
tion, that the quantity returned is correct, and that no surplus 
exists in the original survey, he shall enter and return the same 
without further survey: Provided, That the assessor may deduct 
from the value of such tract of land owned by any person the 
value of the amount of [the] land occupied and used by any rail- 
road, public highway, or canal at the time of such assessment. 

(115.) 

The owner of land is not bound to cause the same to be surveyed until noti- 
fied to do so by the proper officers. See 56 Ind. 38. 

Sec. 6384. Valnes, how affixed. loo. In making out this list, 
the assessor shall place opposite to each tract of land or lot listed 
the value without improvements, and also, in another column op- 
posite, the value of the improvements erected thereon or affixed 
thereto. (ii6.) 

Sec. 6385. Assessor's return-book. loi. Each assessor shall, 
in a book to be furnished by the county auditor, on or before the 
first Monday in June in each year, make out, and deliver to such 
auditor, a return of the real estate listed for taxation in his town- 
ship ; which return shall contain — 

First. The names, arranged in alphabetical order, of the persons 
in whose names the real estate of the township (except such as lies 
within the limits of any city, town, or village) has been listed ; and, 
in appropriate columms opposite each name, the description <^i 



§§ 6386 6388] TAXATFON. [820 

each parcel of real estate listed in such name, and the value of 
such separate parcel, as determined by the assessor from actual 
view. 

Second. The names, arranged in alphabetical order, of the per- 
sons in whose names the real estate in each city, town, or village., 
respectively, in such township has been listed; and, in appropriate 
columns, opposite each name, the description of each parcel of real 
estate listed in such name, and the value of each separate parcel, 
as determined by the assessor from actual view. 

In cases where the name of the owner of any parcel of real 
estate is unkown, it shall be so returned. Each parcel of real estate 
shall be described according to the congressional or other survey, 
division, or subdivision, or according to the recorded plat or sub- 
division thereof; and also in cases of parts of town lots, by the 
number of feet along the principal street or streets upon which it 
abuts. And any description may be supplemented by reference 
to any public record of the county, (n/-) 

Sec. 6386. Assessor's oath. 102. Each assessor or deputy as- 
sessor shall take and subscribe an oath, which shall be certified by 
the county auditor or other officer administering the same, and 
attached to the return which he is required to make to the county 
auditor, in the following form : 

/, , assessor for the iovjnsliip of -, county^ in the State 

of Indiana^ do solemnly sxvear that tlie return to -which this is attached contains a 
correct description of each parcel of real property ^vithin said. to~vnship, as far 
as I have been able to ascertain the same, that the vahie attached to each parcel 
in said return is, as I verily believe, the full and true cash value thereof, esti- 
mated agreeably to the rules prescribed by the laxv particularly section 53 [6336] 
of the act cojicerning taxation; that in no case have I hnovjingly omitted to de- 
mand a statement of the description and value of all the real estate vjhich I am 
required by larv to list, or in any vjay connived at any violation or evasion of 
any of the requirements of the laxv in relation to the listing a^id valuing of real 
estate, subject to all the penalties hereinafter prescribed in section 255 [65211^] 
of this act. 

Which return shall be kept at the office of the county auditor, 
for the inspection of any owner of property contained in such re= 
turn, (118.) 

Seg. 6387. Memorandum to owner. 103. Before or at the time 
of making such return, the assessor shall leave with the owner or 
owners, or his, her, or their agent, if residing in the county, at his, 
her, or their place of residence, a memorandum containing a de- 
scription and value of each tract, lot, or parcel of land, con- 
taining the amount of [at] which his, her, or their real estate has 
been assessed, respectively, and of the time when the board of 
review for the county will meet for the purpose of hearing and de- 
termining grievances and to equalize taxes within the same, (i 19.) 

Sec. 6388. Quadrennial assessments. 104. The first assessment o{ 
the real estate made in pursuance of the provisions of this act shall 



82 1] TOWNSHIP ASSESSORS. [§§6389,6390 

be made in the year 1891, and a like assessment shall be made 
every four years thereafter; and the personal property shall be 
assessed at the same time such real property is assessed, and by 
the same person or persons. And each assessor may, when tak- 
ing lists of personal property, correct all errors of assessment of 
real estate which he may discover on the books, either in the 
name of the person to whom the property is assessed, by change 
of ownership or otherwise, or in the description of property. The 
assessor shall annually thereafter also assess any real estate, or 
improvement, found omitted and also note and list all changes 
found in improvements on real estate, and make return thereof to 
the county auditor as in the year in which real estate is to be 
assessed. (120.) 

Sec. 6389. Tabular list to auditor — Contents. 105. Each assessor 
shall, on or before the first Monday of June annually, make out 
and deliver to the auditor of his county, in tabular form and alpha- 
betical order, a list or lists of the names of the several persons, 
companies, or corporations in whose names any personal property, 
moneys, credits, or other taxables shall have been listed, on v/hich 
list or lists he shall enter separately, in appropriate columns, oppo- 
site each name, the aggregate value of the several species of per- 
sonal property and taxables required to be listed, as attested by 
the person required to list the same or as determined by the 
assessor, making separate lists of persons residing out of any incor- 
porated city or town and of any persons who are residents of an 
incorporated city or town. The columns shall be accurately added 
up. To such return shall be attached the following oath or affirm- 
ation, to be made by himself or his deputy, and certified by the 
county auditor or other officer administering the same : 

/, , assessor for township, county, in the State 

of Indiana, do solemnly swear [or affirm], that the value of all personal prop- 
erty, moneys, credits, and other assessables, of which a state^nent has been made 
and attested by oath or affirmation of the perso?i reqidred by law to list the 
same, is truly returned as set forth in such statement ; that in every case 
where, by law, I have been required to ascertain the amount and vahie of per- 
sonal property and assessables of any person, compajiy, or corporation, I have 
diligently, and by the best means in my power, endeavored to ascertain the 
true amoinit and value of such personal property and assessables, and that, as 
I verily believe,_ the full value thereof, so ascertained by 7ne, and estimated by 
the rule prescribed by law, particularly sectio7i 53 [6336] of the act concerning 
taxation, is set forth in the ajtnexed retiirn ; that in no case have I knotting ly 
omitted to dema7id a stateme?it of the description and value of personal prop- 
erty^ or of the amoimt of moneys and credits, or of the amount and value of 
other stocks, bonds, or other assessables which a7iy person is required by lazu 
to list, nor have I, in any way, connived at aiiy violation or evasion of any of 
the requirements of law in relation to listing or valuing personal property, 
tnoneys, credits, stocks, or other assessables for taxation. (121.) 

Sec. 6390. Correction of errors. 106. When the returns of the 
assessors are received, the county auditor, if satisfied that any 
assessor has omitted any personal propert}-, mone}-s, rights, credits, 
effects, stock, or real estate in his township which it was his duty 



§§ 6392, 6393] taxation. [822 

to return, may, if he deems it expedient, authorize and require 
such assessor to proceed to correct any error or omission which 
may have occurred as aforesaid; and in such case, such assessor 
shall, within ten days after being so required and authorized, pro- 
ceed to correct such errors and omissions, and make such returns 
thereof to such county auditor; but nothing herein contained shall 
authorize any assessor to reduce the amount assessed against any 
person in his form.er return. Or the auditor may himself ascertain 
the value, and add the same to the assessment ; and such county 
auditor shall charge such person with the additional amount, if 
any, returned by such assessor. (122.) 

Omitted property assessed by auditor, § 6416; by treasurer, § 6456; by asses- 
sor, § 6393 ; by board of review, § 6397. 

Sec. 6392. City and town plats. 107. Before any addition is 
made to any city or town, the person making the same, before 
such plat is recorded, shall present the same to the county auditor, 
who shall assess and apportion the true valuation of each lot or 
parcel of land described in such plat, in the same manner as other 
lots are valued, and thereupon such lots or parcels shall be entered 
on the tax list in lieu of the land included therein ; but in making 
such valuation, regard shall be had to the next preceding valua- 
tion of the real estate, so that the said lots shall, as near as practi^ 
cable, be equalized with adjacent lands and lots according to such 
valuation. (124.) 

See § 3374 (towns), and § 3i94«. 

Sec. 6393. Omitted property — Assessor's duty. 108. Whenever 
any assessor, prior to the filing of his return with the county audi- 
tor, shall discover or receive credible information, or have reason to 
believe, that any real or personal property has been omitted in the 
assessment of any year or number of years from the listing and 
assessing or from the tax-duplicate ; or that any person, company, 
or corporation has, from any cause, omitted to list any part of his, 
her, or their property, or has not returned the full value thereof; 
or that the tax for which such property was liable, from any cause, 
has not been paid ; or that any real estate, by reason of defective 
description thereof, has failed to pay taxes for any year or number 
of years, — he shall proceed to correct his list, and add such prop- 
erty to the assessment, so that such property and the owner there- 
of may be charged with the proper amount of taxes thereon. 
But, before making such correction or addition, if the person 
claiming to own such property, or occupying it, or in possession 
thereof, resides in the county, he shall give the person claiming to 
own, or occupying or having in possession such property, notice 
in writing of his intention to list such property, describing it in 
general terms, and requiring such person to appear before him, at 
.his office or place of business, at a specified time within ten days 
after giving such notice, to show cause, if any, why such property 



823] TOWNSHIP ASSESSORS. [§§ 6394 6396 

should not be listed and placed on the assessment-book ; and if the 

party so notified does not appear, or if he appear and fail to show 

any good and sufficient cause why such assessment should not be 

made, such listing shall be made, and the particular years for which 

such property should be listed shall be noted. Such assessor shall 

also file with the county auditor a statement, in writing, of his 

reasons for making such correction or assessment, and the facts or 

evidence upon which such reasons were based. The arrearages 

of tax which might have been assessed shall be charged against 

such person and property by the county auditor. The county 

assessor hereinafter provided for shall, at any time during any year, 

have the power and exercise the duties in this section prescribed 

for township assessors. (125.) 

The county auditor may assess omitted property, § 6416; and so maj^ the 
County treasurer, § 6456. Formerly the assessment could only be for the cur- 
rent year, and not for property omitted in past years; and such special assess- 
ment was required to be made and returned to the county treasvirer before 
March i, of the current year, 80 Ind. 195. See § 6390, note. 

Sec. 6394. Irregularities not to vitiate. 109. A failure to com- 
plete or return an assessment of property, real or personal, by the 
township assessor, within the time required by this act; or any 
informality or irregularity in making the assessment, or in the tax- 
lists, or errors of any kind therein, — shall not vitiate the same but 
the same shall be as legal and valid as if completed and returned 
in the time required bylaw; and such informalities or irregularities 
may be corrected at any time after such return is made. And if 
any property is listed or assessed on or after the first day of June, 
and before the return of the assessor's books, the same shall be as 
legal and binding as if listed and assessed before that time. But 
nothing in this section shall be so construed as to release such 
assessor from any penalty imposed upon him by law for his neglect 
or failure to make his return within the period prescribed by this 
act. (126.) 

Sec. 6395. Assessor to return statements, iio. Each assessor 
shall, at the timiC he makes return of taxable property to the 
county auditor, also deliver to him all the statements of property 
which he shah have received from persons required to list the 
same, arranged in alphabetical order corresponding with his list or 
lists, and also all the plats used in assessing real estate; and the 
auditor shall carefully preserve the same in his office. (127,) 

Sec. 6396. Assessor failing* to swear parties — Penalty, iii. If 

any assessor or deputy assessor shall fail or neglect to administer 
to any person, by him assessed, any oath required by this act to 
be administered, he shall forfeit and pay to the State of Indiana, 
for the use of the school fund, the sum of twenty dollars for each 
case of such omission and neglect, which may be recovered b\- an 
action in the name of the State of Indiana, on the relation of the 



§§ 6396^5 6396-^] TAXATION. [824 

prosecuting attorney, before any justice of the peace of the county, 

together with the costs of such action. (128.) 

Sufficiency of indictment for a failure to call on a person to assess him 
under the laws of 1841 and 1842, 8 B. 212. 

Sec. 6396^. County assessor. 112. There shall be elected, on the 
first Tuesday after the first Monday of November, 1892, and every 
four years thereafter, in each county in this State, one county 
assessor, who shall possess the powers and perform the duties 
hereinafter specified: Provided, That no county assessor shall be 
eligible for re-election until four years after the expiration of the 
term for which he shall have been elected : And, provided further', 
That on the first Monday of June, 1891, or as soon thereafter as 
practicable, the board of county commissioners of each county 
in this State shall elect, by ballot, a county assessor to serve until' 
the election and qualification of the county assessor, as provided 
by this act. Such county assessor shall be a resident fre'eholder 
and householder of the county not less than five years before the 
date of such election. Within ten days after his election, he shall 
give bond with at least two good and sufficient freehold sureties, 
to the acceptance of the county auditor, in the sum of five thou- 
sand dollars, payable to the State of Indiana, and conditioned for 
the faithful and impartial discharge of his duties according to law, 
and shall take and subscribe an oath or affirmation to be indorsed 
on his bond that he vvdll faithfully, impartially and honestly dis- 
charge the duties of his office to the best of his skill and ability, 
which oath shall be in the form, as near as may be, of the oath of 
office of township assessors, as set out in section ninety of this act. 
Said bond so indorsed shall be deposited with the county auditor, 
who is also empowered to administer said oath. The board of 
county commissioners shall fill any vacancy in said office at any 
regular or special session. Said county assessor shall receive three 
dollars per day for the time actually employed in the duties of his 
office, to be paid out of the county treasury on order of the board 
of county commissioners. Before such allowance is made said 
county assessor shall file with the board of county commissioners 
an itemized statement, duly verified, showing the time actually 
employed by him and the nature of his services. 

Sec. 6396^. Duties of county assessor. 113. As soon as such 
county assessor has qualified, he shall receive from the county 
auditor all returns of real and personal property made by the 
assessors of the several townships of the county, together with all 
assessment lists, schedules, statements, maps, and other books and 
papers filed with the auditor by said township assessors. It shall 
be the duty of such county assessor to make a careful examination 
of the tax duplicate of the county, and also of all other records 
and papers in the offices of the county auditor, treasurer, recorder, 
clerk, sheriff" and surveyor, and to hst and assess, at its true cash 



825] COUNTY ASSESSORS. [§ 6396^ 

value, upon the proper township assessor's books and to the proper 
persons, all omitted assessable property, of every kind and nature 
whatsoever, including tax certificates, mortgages, debts, judg- 
ments, claims and allowances of courts and legacies and property 
in the hands of administrators, executors, guardians, assignees, 
receivers, trustees, and other fiduciaries. The valuation made on 
any omitted property by the county assessor shall be entered in a 
separate column under the head of ''Valuation by county asses- 
sor" immediately after the column containing the valuation by the 
township assessor in the several lists and returns of said township 
assessors. The county assessor shall have all the rights and pow- 
ers given by law to township assessors for the examination of per- 
sons and property, and the discovery and assessment of property, 
and making lists and returns of the same. He shall, on or before 
the first Monday after the 4th day of July in each year, make re- 
turns to the county auditor of all township assessors' books, returns, 
lists, schedules, maps, and other papers received by him from the 
auditor, together with such additional lists, assessments, books and 
papers as he has made thereto; and all assessments so made by 
the county assessor shall have the same force and effect as if made 
in the first instance by the township assessor. It shall also be the 
duty of the county assessor, at any time during the year, to list 
and assess upon the proper assessor's books in the office of the. 
county auditor any omitted property that he may discover and 
which should be assessed; and the same shall be placed upon the 
duplicate by the auditor, and the taxes thereon extended and col- 
lected as in other cases. The county assessor is hereby authorized 
and required to advise and instruct all township assessors of his 
county as to their duties under the law, and for this purpose he 
shall visit each township assessor during the months of April or 
May in each year. The county assessor is also given all the pow- 
ers hereinafter given to county auditors and treasurers as to assess- 
ment of omiitted property after the meeting and adjournment of 
the board of county review in each year, and all provisions of 
sections 142 and 182 of this act, as to notice or otherwise, so far 
as applicable, shall apply to such assessment by the county asses- 
sor as if the same were made by the county auditor or the county 
treasurer. On order of the county commissioners, duly entered 
of record at any regular or special meeting of the board, the county 
assessor may appoint one or more deputies to serve such time, not 
exceeding thirty days in any one year, as the commissioners shall 
direct, who shall have the same qualifications, possess the same 
powers and perform the same duties as the assessor, subject to his 
control and direction. They shall receive such compensation as 
the county commissioners shall fix, not to exceed two dollars per 
day. 



6397] TAXATION. IS26 



ARTICLE 14— COUNTY BOARD OF REVIEW. 

SEC. SEC. 

6397. How organized — Powers. 6401. Auditor must keep record. 

6399. Duties and powers. 

[1S91, p. 199. Approved and in force March 6, 1891.] 

Sec. 6397, How organized — Powers — Oatli — Duties. 114. There 
shall be an annual board for the review of all assessments and the 
equalization of the valuation of real and personal property in each 
county. Such board shall be composed of the county assessor, 
county auditor and county treasurer. The county assessor shall 
be president and the county auditor secretary of said board, which 
shall be known as the ** county board of review. " The board shall 
meet for assessment, review and equalization of taxes at the room 
of the county commissioners in the court-house of each county, 
on the first Monday after the fourth day of July annually. Two 
weeks' previous notice of the time, place and purpose of such 
meeting- shall be given by the county auditor in some newspaper 
of. general circulation, printed and published in the county ; or if 
no new'spaper be published in the county then by posting up no- 
tices in three public places in each township in the county. Such 
board shall have the power to hear complaints of any owner of 
personal property, except '^railroad track" and "rolling stock" 
of railroads, to equalize the valuation of property and taxables 
made subsequent to the preceding first day of April, and to cor- 
rect any list of valuation as they deem proper. It shall also have 
power to equalize the valuation made by the assessors, either by 
adding^ to or deducting therefrom such sums as are necessary to nx 
the assessment at the true cash value. In all cases where the 
county board deems it necessary to add omitted property, or to 
increase the valuation thereof by the assessor, it shall cause the 
names of the persons to whose lists property is to be added, or the 
valuation of whose property is to be increased, to be inserted in 
the notice hereinbefore provided for; or such board may, at its 
option, cause to be served upon the person to whose list property 
is to be added, or the valuation of whose property is to be in- 
creased, a written notice that it is proposed to revise or correct his 
list, but such notice need not specify the particulars in which it is 
proposed to revise or correct the list or returns, nor shall it be nec- 
essary to specify particularly in the published notice, but it shall 
be sufficient in any or all such notices to state generally that it is 
proposed to correct or revise the returns, list, statement or schedule 
of the person or persons named. In case such county assessor 
neglects to give the written notice herein provided for, it shall be 
issued by the auditor to the sheriff of the county, who shall serve 
the same at least three days before the same comes up for hearing. 
In case the board adjudges that the returns, statement or schedule 
list shall be revised or corrected by adding property thereto, or by 



82/] COUNTY BOARD OF REVIEW. [§ 639/ 

increasing the valuation of any property therein described, the tax- 
payer whose Hst, return, statement or schedule it adjudges, shall 
be revised or corrected as aforesaid, shall be liable for all costs oc- 
casioned by such revision or correction. The board shall correct 
all errors in the names of persons in the descriptions of property 
upon said list, and in the assessment and valuation of property 
thereon, and shall cause to be done whatever else may be neces- 
sary to make said lists and returns of assessiVients comply with the 
provisions of this act. It shall pass upon each valuation, and may, 
on sufficient cause being shown, or on its own motion, correct the 
assessment or valuation of any property in such manner as will, in 
its judgment, make the valuation thereof just and equal, and enter 
the valuation, when so changed by it, in a separate column. In all 
cases Avhere a change has been made by it, or omitted property 
placed by it on the returns, two weeks' previous notice of the time, 
place, and purpose of the meeting of the board of review shall be 
given by the county assessor. A majority of said board shall con- 
stitute a quorum for the transaction of business, and may decide 
any question. Before entering upon their duties the members of 
the board of review shall each take and subscribe an oath for the 
faithful and impartial discharge of their duties as members of said 
board, which oath shall be administered by the auditor to the as- 
sessor and treasurer, and by the assessor to the auditor, and shall 
be filed with the auditor, and shall be in the form following: 
STATE OF INDIANA, 1 ^ 
County. J 



I, . . . , do solemnly swear that I will support the constitution 
of the United States and the constitution of the State of Indiana 
and that I will faithfully and impartially discharge my duty as a 
member of the board of review for said county; that I will, ac- 
cording to my best knowledge and judgment, assess, review, and 
equalize the assessment of all the property of said county, and that 
I will in no case assess any property at more or less than its true 
cash value, as such value is defined by section 53 of the act con- 
cerning taxation, so help me God. 



Subscribed and sworn to this . . . day of . 



At such meeting the county auditor shall submit to the board 
of review the assessment lists of the county as returned by the 
township assessors and added to and returned by the count}- as- 
sessor for the current year; and the board shall proceed to exam- 
ine and review the same. In addition to his other duties it will be 
the duty of the county assessor to report to the board of review 
for the action of the board, all corrections and changes in the re- 
turns and assessments of the township assessors, Avhich in the judg- 
ment of the county assessor ought to be made. The board of 
review will consider and act upon all recommendations made by 



§ 6399] TAXATION. [828 

the county assessor and will also, of its own motion, or on sufficient 
cause being shown by any person, add to the assessment lists the 
names of persons, the value of personal property, and the descrip- 
tion and value of real estate liable to assessment and omitted on 
said lists. The board shall correct all errors in the names of per- 
sons, in the descriptions .of property upon said lists, and in the 
assessment and valuation of property thereon and shall cause to be 
done whatever else may be necessary to make said lists and re- 
turns of assessments comply with the provisions of this act. The 
board shall pass upon each valuation, and enter the valuation as 
fixed by it in a separate column. The lists as prepared by the 
assessors shall stand as approved and adopted as the act of the 
board of review, except as changed by a vote as herein provided. 
The board may, on sufficient cause being shown, .or on their own 
motion, correct the assessment or valuation of any property in such 
manner as will in their judgment make the valuation thereof just 
and equal. To that end the board may examine, on oath, any 
person touching the matter. Any member of said board may ad- 
minister such oath. Said board is hereby given full power to send 
for persons and papers and to compel witnesses to answer under 
oath, touching any question concerning the assessment and valua- 
tion of property. The sheriff of the county shall serve all process 
and obey all orders of said board, and the board is given power to 
punish for contempt by fine not to exceed one hundred dollars 
and imprisonment in the county jail not exceeding ten days, all 
persons refusing to appear [and testify before the board.] [An 
appeal] shall lie to the circuit court of the county from all orders 
of the board inflicting such punishment, which appeals shall be 
governed by the laws providing for appeals in criminal cases from 
justices of the peace so far as apphcable. Nothing, however, in 
this section shall be taken or construed to authorize the board to 
assess any property at more or less than its true cash value as the 
same is defined in section 53 of this act. Where it appears from 
the returns of the assessors, or from the corrections made in said 
return by the board that any property owner has bona fide indebt- 
edness, the same shall be deducted from the amount of his credits 
listed in the county, and he shall be assessed only on the residue 
of his credits, which residue shall be fixed by the board of review. 

Sec. 6399. Duties and powers. 115. It shall be the duty of such 
board, at such meeting, to inquire as to the valuation of the vari- 
ous classes of property in the respective townships and divisions 
of the county, and to make such changes, whether by way of 
increase or decrease in such valuation [s], as may be necessary to 
equalize the same as between the townships or divisions of town- 
ships, and to determine the rate per cent, to be added or deducted 
in order to make a just and equitable equalization. [In the year 
in which real estate is assessed, it shall be the further duty of the 



829] STATE TAX COMMISSIONERS. [§§6401, 6401^ 

board to make, in like manner, an equalization as to the value of 
the real property] in the respective townships and divisions, so as 
to conform, throughout the county, to a just and equitable stand- 
ard, reference being had to the natural and artificial characteristics 
and surroundings and other elements of value. Such board. shall 
also have power, in proper cases, to reduce or increase the valua- 
tion of any particular tract or lot. (130) 

Such board may consider lands, town lots, and city lots as sep- 
arate classes, if necessary for the purpose of equalization, and 
determine a percent[age] of addition or reduction for such [each] 
or any of said classes within the respective townships as between 
the several townships or other divisions. The board shall have no 
power to reduce the aggregate valuation of all the townships below 
the true cash value, nor increase the same beyond the amount 
actually necessary for a proper and just equalization. If the board 
shall find the aggregate assessment is too high or too low, or is 
generally [so] unequal as to render it impracticable to equalize the 
same, it may set aside the assessment of the whole county, or of 
any township or townships therein, and order a new assessment, 
with instructions to the assessors to increase or diminish the aggre- 
gate assessment of their respective townships in such amount as 
the board may deem right and just and consistent with law. The 
duration of the session of the board of review shall not exceed 
eighteen days. (131.) 

Sec. 6401. Auditor mnst keep record. 116. The county auditor 
shall keep a full and accurate minutes of the proceedings of the 
board of review. (132.) 



SEC. SEC. 

64010. State board of tax commissioners. 64017;. Oath of a member. 

6401Z'. Bond and oath. 6404. Secretary's oath and duties. 

640ir. Terms of office. 6405. Quorum. 

64010/. Duties. 6406. Dut)^ of board as to real estate. 

6-\oie. Record — Quorum. 6407. County auditor's abstracts to state au- 

6401/. Pay — Expense. ditor. 

64010^. Examination of witnesses. 640S. Classification by board. 

6401/'. Penalties. 6409. Counties, how e"qualized. 

6401;'. Appeals. 6410. Railroad property, how assessed. 

6401/. Duties of g:overnor, auditor, and secre- 6411. Results, how tabulated. 

tary limited. 6412. Equalization certified to state auditor. 

6-^1 k. Vacancy. 6413. How tax extended. 

6401/. Office and printing. 6414. Report of board published. 
6401 ;«. Meetings — Powers — Duties — Oaths — 

Appeals — Costs. 

[1891. Approved and in force March 6, 1S91.] 

Sec. 6401^. State board of tax commissioners. 117. Immediately 
upon the taking effect of this act, the governor shall appoint two 
skilled and competent persons, not more than one of whom shall 
be of the same political party, who, together with the secretary 
of state, auditor of state and governor, the last three of whom 



§§6401^, 6401^] TAXATION. [830 

shall ex officio be members, and the governor chairman thereof, 
shall constitute and be a board to be denominated the state board 
of tax commissioners, who shall perform the duties and have the 
powers hereinafter specified. 

Sec. 6401^. Bond and oath. 118. The governor shall commission 
the commissioners so appointed as aforesaid, and before entering 
upon the discharge of their official duties they shall each execute 
a bond payable to the State of Indiana, in the penal sum * of 
^10,000 (ten thousand dollars,) with sureties to the approval of the 
governor, for the faithful discharge of their official duties, and they 
shall each take and subscribe an oath of office, as hereinafter set 
out, which oath shall be indorsed upon their official bond, which 
bond and oath, when so executed, shall be filed in the office of 
the secretary of state. 

Sec. 6401^:. Terms of office. 119. The members of the first board 
shall hold their offices, one for two years and one for four years, 
the said members to determine by lot, after they are chosen, in 
any manner they may agree upon, which one shall hold his office 
for two years and which one for four years, respectively. And 
thereafter persons so chosen as members of such board shall hold 
their office for a term of four years. 

1. The assessor may assess omitted property, 6§ 6390, 6393 ; and so may the 
auditor, § 6416, and the treasurer, § 6456. 

2. There is no city board of equalization, §§ 3157, 3160, 6521CZ. The town 
has none, for it adopts the assessment as equalized by the county board of 
equalization. 

3. A town or citj^ can not levy taxes until after the county board of review 
has met ; for they now adopt the appraisement of the State, §§ 3160 and 6521^; 
104 Ind. 363. 

4. A county board of review has the power, and it is one of its duties, to 
add and assess omitted propertj', and to investigate and determine whether a 
citizen is the owner of property, subject to taxation, which he has omitted from 
his tax list. To that end it may examine witnesses, each member having power 
to administer all necessary oaths in the discharge of the duties of the board, 
and a prosecution for perjury may be predicated upon testimony given in such 
cases, no Ind. 82. 

5. An indictme7it, charging perjury in testimony given before a county 
board of equalization by a tax-payer concerning personal propertv owned by 
him on the first day of April, must show either that the defendant vras a resi- 
dent of the county on that day, or that, having become a resident subsequentlv, 
he had not been assessed on the property in question in the taxing district from 
which he had moved, in order that it may appear that his testimonv was concern- 
ing a material matter, no Ind. 82; loS Ind. 353. 

6. This section, as stood in the law of 18S1, was held nuconstitntional, so far 
as it allowed the value of property assessed to be increased, or omitted property 
to be added; because no sufficient notice was provided ior, a general notice of 
the time and place of the sitting of the board being insufficient. This defect 
Avas remedied by the amended section of 1889, and by the new tax law of 1891, 
117 Ind. I ; 118 ind. 214. 

7. The vahiation placed upon lands by the assessor and board of revicM 
is conclusive upon the county auditor, and' he can not add thereto; and if he 
does, and the tax-payer pays the tax assessed upon such additional valuation, 
he may recover back such tax, 117 Ind. 410. Where it was claimed that the 



831] STATE TAX COMMISSIONERS. [§ 6401^ 

board illegally i?icreased the value fixed to a sworn schedule, in an action to re- 
strain the collection of taxes, it was held that it must be averred that the assess- 
ment, as increased, Avas in fact too large, 29 Ind. 533, 

Sec. 6401^. Duties. 120. It shall be the duty of the state board 
of tax commissioners : 

First. To prescribe all forms of books and blanks used in the 
assessment and collection of taxes, and to change such forms when 
prescribed by law, in case any such change shall be necessary. 

Seco7id. To construe the tax and revenue laws of the State and 
instruct them in relation to their duties with reference to taxation 
and assessments, whenever requested so to do by any officer 
acting under any such laws, or by any other person interested 
therein. 

Third. To sec that all assessments of property in this State are 
made according to law. 

Foitrth. Especially to see that all the railroads and other cor- 
porations of the State are assessed and taxed as provided by law. 

Fifth. To see that all taxes due the State are collected. 

Sixth. To enforce penalties prescribed by any revenue law of 
the State for disobedience of its provisions. 

Seventh. To determine, whenever necessary, the amount re- 
quired to be levied upon property in the several counties to cover 
any deficiency in the state revenue, not otherwise provided for. 

Eighth. To examine all books, papers and accounts, and to 
interrogate under oath, or otherwise, all persons necessary to ena- 
ble the board to acquire and obtain all information that could in 
any manner aid it in securing a compliance wdth the tax and reve- 
nue laws of the State by all persons or corporations liable to taxa- 
tion, or to pay any license fee under any law in force in this State. 

■ Ninth. To make such rules and regulations as the board shall 
deem proper to effectually carry out the purposes for which the 
board is constituted, and to make all necessary rules and regula- 
tions not inconsistent with law, as the board may deem necessary 
with respect to its own meetings and procedure. 

Tenth. To report to the general assembly, at each session, the 
whole amount of revenue collected in the State for all purposes, 
classifying as to state, county, township, and municipal purposes, 
with the sources thereof, the amount lost and the causes of the 
loss, the proceedings of the board, and such other matters of 
information concerning the public, revenues, as they may deem of 
public interest. 

Eleventh. To make diligent investigation and inquiry concern- 
ing the revenue laws and systems of other States and countries, 
so far as the same are made known by published reports, or sta- 
tistics, or can be ascertained by correspondence with officers 
thereof, and Avith the aid of information thus obtained, together 
with experience and observation of our own laws, to recommend 
to the general assembly at each session thereof, such amendments, 



§§ 640 1 r 64012] TAXATION. [832 

changes or modifications of our revenue laws as seem proper or 
necessary to remedy injustice or irregularity in taxation, or to 
facilitate the assessment and collection of public revenues. 

Twelfth. To see that each county in the State be visited by at 
least one member of the board, as often as once each year, to the 
end that complaints concerning the law may be heard, and that 
information concerning its workings may be collected. That all 
revenue officers comply with the law, and all violations thereof be 
punished, and that all proper suggestions as to amendments and 
changes may be made. 

Sec. 6401^. Eecord — Uuorum. 121. A record of the proceed- 
ings of such board shall be kept at the capital, open to the inspec- 
tion of the public. A majority of such board shall constitute a 
quorum to do business. 

Sec. 6401/! Pay — Expenses. 122. The members of said board, 
except the secretary, auditor and governor, shall each receive as 
compensation for his services the sum of twenty hundred dollars a 
year, payable quarterly out of appropriations to be made for that 
purpose. They shall also receive traveling expenses actually paid, 
necessary to the performance of the duties of the office, which ex- 
penses shall be itemized by the person incurring the same, and 
when the account of the same is approved by the governor, it shall 
be paid, not exceeding six hundred dollars per annum each, and 
not otherwise. 

Sec. 6401^, Sxammation of witnesses. 123. The said board, 
or any member thereof, shall have power to subpoena and examine 
witnesses, to administer oaths, and shall have access to and the 
power to order the production of any books or papers in the hands 
of any person, company or corporation whenever necessary in the 
prosecution of any inquiries necessary or proper in their official 
capacity. 

Sec, 6491/^. "Witnesses, penalties. 124. Any person who shall 
disobey any subpoena, or subpoena duces tecum of said board or 
any member thereof, or refuse to testify, when requested so to do 
by said board or any member thereof, shall be deemed guilty of a 
misdemeanor, and upon conviction thereof, shall be fined in any 
sum not less than $50, nor more than ^i.coo for each offense. 

Sec. 6401z'. Appeals. 125. Appeals shall He from the decision 
of any county board of review to the state board of tax commis- 
sioners, which shall hear and determine the same, in such manner 
as it may by its rules prescribe, and certify its decision, which shall 
be final, to the proper county auditor: Provided, That all such ap- 
peals shall be allowed within such time and under such restrictions 
as maybe prescribed by the state board of tax commissioners; but 
the pendency of such appeals shall not operate to stay the collec- 



833] STATE TAX COMMISSIONERS. [§§ 6401;* — 6401;^ 

tion of any tax, except by special order of the board and upon 
such conditions as it may prescribe. 

Sec. 6401;". Duties of governor, auditor, and secretary limited. 126. 
The duties imposed by this act, as specifically set out in section 
120, so far as the same can be consistently done, shall be done 
and performed by the two members of the board specially cho- 
sen to act as such, and the governor, auditor and secretary of 
state shall only be required to sit with the board and take part in 
its proceedings when performing the duties heretofore devolving 
upon the state board of equalization, and at such other times and 
under such other circumstances as may be rendered necessary in 
order to effectually carry out the purposes of this act. 

Sec. 6401/^. Vacancy. 127. In case a vacancy shall occur by 
reason of the death, resignation, or removal of either of the com- 
missioners specially chosen to act as such, the governor shall 
appoint a successor to fill out the unexpired term of the officer 
whose office is thus made vacant. And in such appointment the 
governor shall appoint a person from the same political party as 
the officer whose office is thus made vacant. 

Sec. 6401/. Ofice and printing. 128. It shall be the duty of the 
custodian of public buildings and property to furnish a suitable 
room in the capitol building, and the auditor of state shall provide 
all such printing and stationery, as may be necessary for the trans- 
action of the business of said board. 

Sec. 6401;;^. Meetings — Powers — Duties — Oaths — Appeals — Costs. 
129. The state board of tax commissioners shall, annually, con- 
vene in the office of the auditor of state, on the first Monday of 
August each year, for the purpose of assessing railroad property 
and equalizing the assessment of real estate as provided in this act. 
Said board shall organize with the governor as chairman, and the 
deputy auditor of state, or one of the clerks in the office of the 
auditor of state, shall act as secretary. The state board of tax 
commissioners is hereby given all the powers given to county 
boards of review. They shall not be bound by any reports or 
estimates of value of railroad property, real estate or other prop- 
erty, as returned to the county auditors or to the auditor of state, 
but shall appraise and assess all property at its true cash value, as 
defined by this act, according to their best knowledge and judg- 
ment, and so as to equalize the assessment of property throughout 
the State ; they shall have the power to send for persons, books 
and papers, to examine records, hear and question witnesses, to 
punish for contempt any one who refuses to appear and answer 
questions, by fine not exceeding one thousand dollars and by im- 
prisonment in the county jail of any county not exceeding thirty 
days, or by both. Appeals shall lie to the criminal court of ]\Iari- 
on county from all orders of the board inflicting such punishment, 
.53 



§§640I7Z 6406] TAXATION. [834 

which appeals shall be governed by the laws providing for appeals 
in criminal cases from justices of the peace, so far as applicable. 
The sheriffs of the several counties of the state shall serve all 
process and execute all orders of the board. All members of the 
board may administer any oath. All necessary costs and expenses 
of said board shall be paid out of the state treasury on warrants of 
the auditor on being duly certified. 

The state board of equalization of 1S69 was declared illegal ; but it was held 
that taxes illegally collected by reason of its action could not be recovered back 
from the state when paid into the state treasury, 36 Ind. 175 ; 49 Ind. 64. 

Sec. 6401;^. Oath of a member. 130. The several persons consti- 
tuting the board, as herein provided, before entering upon the 
discharge of their duties as members of said board, shall each take 
and subscribe an oath for the faithful and impartial discharge of 
their duties as members of such board, which oath, together with 
the oath of the secretary, shall be filed and preserved with the 
proceedings of the board. Which oath shall be in the form fol- 
lowing, to wit: 

STATE OF INDIANA, 1 
Marion County, J 

I, . . . , do solemnly swear that I will support the constitu- 
tion of the United States and the constitution of the State of Indi- 
ana; that I will faithfully and impartially discharge my duties as a 
member of the state board of tax commissioners, that I will, 
according to my best knowledge and judgment, assess and equal- 
ize the property of the several counties of this State, and that I 
will in no case assess any property at more or less than its true 
cash value, as the same is defined in section 53 of the act con- 
so help me God. 



Subscribed and sworn to this . . . day of 



Sec. 6404. Secretary's oath, and duties. 131. The secretary shall 
take and subscribe an oath for the faithful performance of his duties 
as said secretary; and shall keep a record of the proceedings of 
the board ; which shall be certified by the chairman and secretary, 
and filed in the office of the auditor of state. (135.) 

Sec. 6405, Q,uorum. 132. Any three members of said board shall 

constitute a quorum for the transaction of business ; and the board 

may adjourn from time to time until the business before it is finally 

disposed of, but the duration of the session shall not exceed forty 

days. (136.) 

If the board remain in session longer than forty days, the acts done after 
the expiration of that period are void, 34 Ind. 452; 49 Ind. 64. 

Sec. 6406. Duty of board as to real estate. 133. It shall be the 
duty of said board to examine the abstracts of all the real prop- 



835] STATE TAX COMMISSIONERS. [§ 6407 

erty assessed for taxation in the several counties of this State, as 
returned to the auditor of state, and [it] shall equalize the assess- 
ments as hereinafter provided. But said board shall not reduce 
the aggregate assessed valuation in the State; neither shall it 
increase^ said aggregate valuation beyond the true cash value, as 
defined in this act. (i37-) 

The state board has no power except such as is conferred by statute, 3 Ind. 
452. The courts can not control, reduce or enlarge the amount of the assess- 
ment as fixed hy the board, 45 Ind. 85. 

Sec. 6407. County auditors' abstracts to state auditor. 134. For 
the purpose of properly equalizing the valuations of real property 
and railroad property within the State, it shall be the "duty of 
county auditors, on or before the 20th day of July of each year, 
upon the receipt of the assessn:ient-books, to make out, and trans- 
mit to the auditor of state, an abstract of the assessment of prop- 
erty, showing the number, value, and average value of each class 
or kind of enumerated property as shown by the assessment, the 
value of each item of unenumerated property, and total value of 
personal property; the value of all land in each civil township with- 
out improvements, [the value of improvements] thereon, and the 
value of such land with improvements; and in like order all city 
or town in-lots and out-lots, showing the value of such lots, with- 
out improvements, the value of improvements [thereon], and the 
value of such lots with improvements; [and] the length of the 
main track or tracks, the length of the side track or tracks, the 
number or descriptions, [and] the value and average values of 
each separate item of railroad property. Such abstract shall be 
arranged in such manner as to show, by civil townships, the num- 
ber of acres, value, and average value of improved lands, and, in 
like manner, the number of acres, value, and average value of un- 
improved lands, the total number of acres, [and] the total value, 
and average value per acre of all lands, the number, value, and 
average value of improved town or city lots, the number, value, 
and average value of unimproved town or city lots; the total 
number of lots, total value, and average value of all lots; and 
the total value of all property, real and personal. Said abstract 
shall be made out on the blanks, which it shall be the duty of 
the auditor of state to furnish the county auditor[s] for that 
purpose. The value to be given in said abstract shall be the 
assessed valuation, except in the case of railroad property, de- 
nominated ''railroad track" and " rolling-stock," the value of 
which shall be given as returned by the railroad company [com- 
panies] to the county auditors. The county auditor[s] shall, at 
the same time, and accompanying the said abstract[s], furnish a 
detailed statement of the railroad property, denominated "railroad 
track" and ''rolling-stock," reported by each road located in or 
through their counties. If there are any roads so located that 
have not made their report[s], as required by this act, the county 



§§6408 — 641 1] TAXATION. [836 

auditors shall report the facts, giving the names of such railroadTs.] 
In case of the failure on the part of any county auditor to furnish 
the proper returns of the assessment of his county to the auditor 
of state prior to or during the meeting of the state board of tax 
commissioners in each year, said board may, by order, authorize 
the auditor of state to equalize the assessment of such county 
when full returns have been received by him. (138.) 

Sec. 6408. Glassiiicatioii by board. 135. Said board, in equalizing 
the valuation of property as listed and assessed in the different 
counties, shall consider the following classes of property separately, 
namely, railroad property, lands, and town and city lots; and, 
upon such consideration, determine such rates of addition to or 
deduction from the listed or assessed valuation of each of said 
classes of property, in each county, or to or from the aggregate 
assessed value of each of said classes in the State, as may be 
deemed by the board to be equitable and just — such rates being in 
all cases even, and not fractional ; and such rates, as finally deter- 
mined by said board, shall not be combined. (i39-) 

Sec. 6409. Counties, bow equalized. 136. Counties shall be equal- 
ized, by adding to the aggregate value of the lands [and] town and 
city lots, in every county in v/hich said board may believe the 
valuation to be too low, such rate per centum as will raise the same 
to its proper proportionate value, and by deducting from the aggre- 
gate assessed value thereof, in every county in which said board 
may believe the valuation to be too high, such per centum as will 
reduce the same to its proper value as defined in this act. (140.) 

The board is the final arbiter on the question of assessment, if it is properly 
constituted and legally organized, and acts without fraud, 45 Ind. 85. 

Sec. 6410. Railroad property, how assessed. 137. Said board 
shall also assess the railroad property denominated in this act as 
" railroad track " and ** rolling-s,tock, " at its true cash value. And 
said board is hereby given the power and authority, by committee 
or otherwise, to examine persons or papers. The amounts so deter- 
mined and assessed shall be certified by the auditor of state to the 
county auditors of the proper counties. The county auditor shall, 
in like manner, distribute the values so certified to him by the 
auditor of state to the several townships, cities, and towns in his 
county [which are] entitled to a proportionate value of such rail- 
road track and rolling-stock, and said auditor shall compute and 
extend taxes against such value the same as against other property 
in such townships, cities, and towns. (141.) 

The state board of tax commissioners has exclusive authority to assess and 
value the "railroad track" and '•rolling-stock," 108 Ind. 144. 

Sec. 6411. Results, how tabulated. 138. When said board shall 
have separately considei-ed the several classes of property as here- 



837] COUNTY AUDITOR. [§§ 64I2 6416 

inbefore required, the result shall be combined into one table ; and 
the same shall be examined, compared, and perfected in such man- 
ner as said board shall deem best to accomplish a just equalization 
of assessments throughout the State, preserving, however, the 
principle of separate rates for each class of property. (142.) 

Sec. 6412. Squalisatioii certified to state auditor. 139. When 
said board shall have completed its assessments and its equalization 
of assessments, for any year, it shall certify to the auditor of state 
the rates finally determined by said board to be added [to] or de- 
ducted from the listed or assessed valuation of each class of prop- 
erty in the several counties, and also the amounts assessed by said 
board ; and it shall be the duty of said auditor, under his seal of 
office, to report the action of the board to the several county audi- 
tors immediately after the adjournment of said board. (143.) 

Sec. 6413. How tax extended. 140. All rates for taxes provided 
for by law shall be computed and extended by each county auditor 
on the assessor's valuation of property, as equalized by the county 
board of review and state board of tax commissioners, except as 
otherwise provided by law. (144-) 

Sec. 6414. Report of board published. 141. A report of all the 
proceedings of said state board of tax commissioners shall be pub- 
lished annually, in pamphlet form, and three thousand copies there- 
of printed ; of which number the auditor of state shall retain two 
hundred copies, and the remainder shall be distributed, by him, to 
the several counties, in the proportion usual in similar cases. 
(145.) 

ARTICLE 16— DUTIES OF COUNTY AUDITOR. 

SEC. SEC. 

6416. May assess omitted property — Notice. 6421. Correcting errors. 

6417. Making- tax duplicate. 6422. puplicate to treasurer — Abstract to state 
641S. Estimating: and affixing values. auditor. 

6419. Installments, how arranged. 6423. Transfer-book — Indorsements — Fee. 

6420. Adding and apportioning rates. 

[ 1S91, p. 199. Approved and in force March 6, 1891.] 

Sec. 6416. May assess omitted property — Notice. 142. Whenever 
the county auditor shall discover or receive credible information, 
or if he shall have reason to believe, that any real or personal 
property has, from any cause, been omitted in whole or in part, in 
the assessment of any year or number of years, from the assess- 
ment book or from the tax duplicate, he shall proceed to correct 
the tax duplicate, and add such property thereto, with the proper 
valuation, and charge such property and the owner thereof, with 
the proper amount of taxes thereon, to enable him to do which he 
is invested v/ith all the powers of assessors under this act. But be- 
fore making such correction or addition, if the person claiming to 



§ 6417] TAXATION. [838 

own such property, or occupying it, or in possession thereof, re- 
sides in the county and is not present, he shall give such person 
notice, in writing, of his intention to add such property to the tax 
duplicate, describing it in general terms, and requiring such person 
to appear before him, at his office at a specified time within five 
days after giving such notice, and to show cause, if any, why such 
property should not be added to the tax duplicate and if the party 
so notified does not appear, or if he appears, and fails to show any 
good and sufficient cause why such assessment shall not be made, 
the same shall be made. And the county auditor shall, in all cases, 
file in his office, a statement of the facts or evidence on which he 
made such correction, but he shall in no case reduce the amount 
returned by the assessor, without the written assent of the auditor 
of state, given on the statement of facts submitted by the county 
auditor. (147.) 

1. The county and township assessor (§ 6393) and county treasurer (§6456) 
may assess omitted property in certain contingencies. Taxes can be imposed 
and collected only in the way provided by statute, and an express promise to 
pay taxes on property which has escaped taxation, which taxes have never been 
placed on the tax duplicate, is void. Employing persons to look up omitted 
property is illegal ; and a note given to them for the payment of taxes that should 
have been assessed on omitted property is void, 87 Ind. 405. 

2. The city clerk possesses the powers of the auditor to assess omitted 
property, §§ 3070, 3160. 

3. The law does not require the auditor, in making the assessment, to make 
it Hp07i actual view, 27 Ind. p. 293. He can not assess omitted railroad prop- 
erty, 69 Ind. 71. Under the law of 1872 the assessment could not be for ^ast 
years ; only for property omitted for the current year, 78 Ind. 353 ; 80 Ind. 195, 
330; 84 Ind. 108; and an attempt to collect past taxes thus assessed was en- 
joined, 84 Ind. 108; SS Ind. 304. A sale of land for such taxes is void, 108 Ind. 
97. Nor is this section retroactive, 103 Ind. 17; but it makes it his duty to 
search for such property, and in so doing he has all the powers of a township 
assessor. He does not act as a judicial officer, and his acts are not judgments, 
106 Ind. 345; 84 Ind. loS. 

4. What vv-as essential to recover such taxes back, see 100 Ind. 570. 

5. The county auditor can neither «^(^ to nor reduce the vahiation of the 
property returned by the assessor; his power extends only to property wholly 
omitted from the assessor's list, 80 Ind. 330. The same is true of the city 
treasurer, 30 Ind. 133. 

6. The county auditor is not entitled to additional compensation for his 
services under this section, 106 Ind. 345. 

7. The county commissioners can not employ the county auditor to search 
for omitted property, nor any official, nor any person: and a contract to pay 
for such work is void, 106 Ind. 345; nor can the board authorize the auditor to 
employ an attorney to assist in the collection, 88 Ind. 133 ; 87 Ind. 405. See 
note I. Neither can a city common council employ an agent or pay the city 
treasurer extra for such services, 88 Ind. 62. 

Sec. 6417. Making tax duplicate. 143. The auditor of each county 
shall, between the first Monday in July and the last day of Decem- 
ber, make out a duplicate list of taxes assessed in said county, 
according to the forms which shall be furnished by the auditor of 
state ; and in so doing, he shall enter, in separate columns — 

First. All lands in each civil township, wdth the names of the 
owners in alphabetical order, the value of the land without im- 



839] COUNTY AUDITOR. [§§6418 

provements, and, opposite to this, the value of improvements 
thereon. 

Secondly, In hke order he shall enter all city and town in-lots 
and out-lots situated in such township, with the improvements 
thereon. 

Third!}'. In its place, all corporation stocks except stocks in 
banks, which shall be assessed and taxed in the town or city where 
the bank is located, as in this act elsewhere provided. 

Fourthly. All other personal property subject to taxation, and 
which shall be charged, together with the poll-tax, in the civil 
township where the owner resides; but, when personal property 
is required to be listed in a township different from that of the 
owner's residence, it shall be taxed in the township where listed. 

Fifthly. He shall number each original township in regular pro- 
gression as the same shall stand entered on his duplicate, and the 
same township shall retain the same number from year to year. 

Sixthly. He shall number each name in each township in reg- 
ular progression. 

The county auditor, in making out such duplicate, shall be care- 
ful to enter thereon all the lands previously entered for taxation, 
with the valuations thereof, as heretofore assessed, and all such 
lands as, by mistake or neglect or for any other cause, shall have 
been omitted to be entered; also, all such lands as shall be found 
to have become subject to taxation since the last assessment, with 
such valuation[s] as shall be affixed thereto by the assessor. And 
he shall enter all personal property according to the list of the last 
assessment made in conformity to this act, giving a pertinent 
description of all property thus entered on his duplicate, and duly 
enter all transfers of land made since the last assessment, and carry 
into effect all alterations which shall be made in the assessor's list 
by the board of review, (148.) 

1. For city, see § 3070; town, § 3349. Under the law of 1835 the county 
auditor was entitled to ten cents per hundred words for making the tax dupli- 
cate, 18 Ind. 423. 

2. How far a tax duplicate is evidence, see 96 Ind. 29S, and § 6322, notes ; as 
to assessment, see § 6330. 

3. The presumption is that the taxes are placed on the tax duplicate by the 
proper person, 109 Ind. 10, in pursuance of a proper levy, 120 Ind. 52S. 

Sec. 6418. Estimating and affixing values. 144. The county 
auditor shall estimate in dollars and cents, rejecting fractions of a 
cent, and set down on such duplicate, in one column, the state, 
county, school, township, road, and all other taxes chargeable on 
the valuation of property contained in such duplicate, including 
also the poll-tax for state, county, and all other purposes; and he 
shall set down in a separate column the amount of taxes on all 
property returned delinquent, specifying the years and the amount 
remaining unpaid, with the proper penalty on the same added ; 
and shall carry out the aggregate amount[s] into a column of 
totals. (149.) 

City, 1^3070; town, § 3349, 



§§ 6419 6422] TAXATION. [840 

Sec. 6419. Instaliments, how arranged. 145. He shall set down 
the amount of taxes charged against each tax-payer in two sep- 
arate columns, the first installment, embracing all road taxes and 
one-half of all other taxes, shall be placed in the first column ; and 
the second installment, embracing the other half, shall be placed 
in the second column ; with a sufficient blank space at the right of 
each column to write, in ink, the word ''Paid" ; and when pay- 
ment of either half of such taxes shall be made, the treasurer 
shall write in the blank space opposite the same, the word "Paid," 
and shall execute a receipt therefor in the usual form now used, 
except that it shall state which installment the payment is entitled 
to apply to, and if for the last installment, shall state upon its face 
"in full." (150.) 

City taxes are all collected in one installment, § 3160 ; unless the city by 
ordinance directs otherwise, § 3i6o«. Town taxes are collectible in two install- 
ments, § 3263. 

Sec. 6420. Adding and apportioning rates. 146. He shall add on 
each page of such duplicate the several columns containing the 
valuation of real and personal estate, taxes, charges, and the num- 
ber of acres, carrying the same forward from page to page, to the 
close of each township. And at the end of the duplicate, he shall 
recapitulate the several townships ; and apportion the amount of 
taxes levied on the property in each township ; and set down, in 
separate columns, the amount of state, county, school, township, 
road, and all other taxes levied ; and add the aggregates of the 
above for the whole county. (151-) 

City, 6 3070; town, § 3349. 

Sec. 6421. Correcting errors. 147. He shall, from time to time, 
correct all errors which he may discover in his duplicate, either in 
the name of the person charged with taxes, the description of the 
property, or the amount of the tax charged ; and shall add, from 
time to time, any corrections or additional assessments made on 
the assessor's books by the county assessor ; and when such cor- 
rection is made after the duplicate shall have been delivered to 
the treasurer for collection, the auditor shall give a certificate of 
such correction to the treasurer, who shall make the like correction 
on his duplicate, and keep such certificate as his voucher on settle- 
ment with the auditor. (152.) 

The city clerk may correct errors ; and so may the town board of trustees, 
or the town clerk by their order. 

Sec. 6422. Duplicate to treasurer — Abstract to state auditor. 148. 
He shall cause a copy of such duplicate to be delivered to the 
treasurer of his county, on or before the last day of December in 
each year. And he shall also make out, and cause to be trans- 
mitted to the auditor of state, on or before the first day of January 
in each year, a complete abstract of all the property listed in each 
township, the valuation thereof, the number of polls, the amount 



841] COUNTY AUDITOR. [§6423 

of each kind of tax, and the aggregate thereof in the county, and 
certify the same, as also the rate of each kind of tax assessed. 

(153.) 

1. The omissio7i to deliver the duplicate to the treasurer before the statu- 
tory time, or to add up columns, or carry footings forward, are clerical errors 
merely, which do not vitiate, 27 Ind. 475. 

2. The appropriate remedy to prevent the collection of illegal taxes, 
assessed and threatened, is by iiiju7ictioji, 22 Ind. 262. 

3. A general levy can not be restrained because a part will be expended 
legally. The proper remedy is to restrain the treasurer from paying out the 
money, 27 Ind. 475. 

4. Where part of the taxes assessed against a person are illegal, he can not 
restrain the collection unless he pays or tenders the portion legally assessed, 
68 Ind. 500; 69 Ind. 153, § 6269, note 11. The complaint must allege that the 
duplicate is in the treasurer's hands, 25 Ind. 281 ; 59 id. 61 ; 86 Ind. 479 ; 70 Ind. 
469; 73 Ind. 3; 72 Ind. 161; 43 Ind. 415. 

5. If the duplicate is legal upon its face, the treasurer is justified in seizing 
the tax-payer's property for taxes due from him, 15 Ind. 26; 28 Ind. 154; 98 Ind. 
P- 235- 

6. The tax duplicate is not a ivritten instru7nent within the provisions of 
R. S. 1881, § 362, and a copy of it. in a proceeding to restrain the collection of 
taxes, need not be made a part of the complaint, 15 Ind. 26. 

7. The lieii for taxes does not attach to personal property until the dupli- 
cate is delivered to the treasurer It has the same effect upon property as an 
execution, 19 Ind. 146; 69 Ind. 153. See § 6427, note 2. The lien is perpetual 
until payment, and is not destroyed by the taxes being dropped from the dupli- 
cate for some intervening years, and placed for those years upon a " register of 
doubtful taxes," 109 Ind. 10; § 6446; 76 Ind. 68. 

8. An omission to deliver the tax duplicate to the treasurer before the last 
day of December, or to add up the columns and carry the footings forward 
from page to page, or to recapitulate the townships at the end of the duplicate, 
or add up the aggregate of the items for the entire countj^, does not render the 
duplicate void, nor prohibit the collection of the taxes. Such omissions are 
merely clerical, and the auditor may supply them at any time, 27 Ind. 475. 

9. The statute does not require the duplicate delivered to the treasurer to 
be certified as a copy. The one delivered to the treasurer is something more 
than a copy. It is as much an original instrument as the one retained by the 
auditor. It may be introduced in evidence as the original, 98 Ind. 231. 

10. The duplicate should contain the property of all citizens residing in 
that portion of any part of the county detached and added to another county., if 
the assessment lists have been returned and the taxes levied before the dis- 
annexing order has been made, 32 Ind. 234. 

11. The city duplicate, § 3070, and town assessment roll, § 3349, have the 
same effect as a county duplicate, being restricted in their effect to the citv or 
town limits. 

Sec. S423. Transfer-book — Indorsements — Fee. 149. The county 
auditor shall keep a transfer-book, arranged by townships, cities, 
and towns, in which he shall enter a description, for the purpose[s] 
of taxation, of all lands that have been conveyed by deed or par- 
tition, with the date of the conveyance and names of the parties ; 
and he shall indorse on such deed or instrument of conveyance 
the words, ''Duly entered for taxation," or that it is "Not taxa- 
ble," or "Has already been listed for taxation"; and for every 
such transfer he shall receive from the party recording such instru- 
ment, a fee of ten cents for each parcel of ground or lot so trans- 



g§ 6424—6426] TAXATION. [842 

ferred. He shall take care that all descriptions for the purposes 
of taxation are correct, and that the owners' names are properly 
transcribed. Where the property is already in the name of the 
right owner, and needs no transfer, he shall not receive the fee of 
ten cents. (154.) 
See V 6322^. 



ARTICLE 17— DUTIES OF COUNTY TREASURER. 

SEC. I SEC. 

6424. Xotice to tax-payers. 6427. Demand of delinquents. 

6425. 'When to be at his office. 6428. "When auditor shall not credit treas- 

6426. "When taxes shall be paid — Penalty. urer. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6424. Notice to tax-payers. 150. As soon as the county 
treasurer receives such duplicate, he shall forthwith cause notices 
to be posted up at the court-house door, and also cause the same 
to be published in one weekly newspaper having general circula- 
tion in his county, if any there be, for three weeks successively, 
stating in such notice, the amount of tax charged for state, county, 
school, road, or other purposes, on each one hundred dollars valu- 
ation of the taxable property ; also the tax on each poll for state, 
county, or other purposes. (15 5-) 

1. The requirement of notice is merely directory, and the failure to give it 
will not prevent the collection of the tax, 28 Ind. 154. 

2. The city treasurer (§ 3087) and town marshal must give the notice pro- 
vided for in this section, 

3. Cities and towns under seventy thousand population may place their tax 
duplicates with the treasurer of their county, and require him to collect the 
taxes, § 3225(7. 

Sec. 6425. When to be at his office. 151. Such treasurer shall 
attend at his office at the seat of justice, in person or by deputy, 
for the purpose of collecting the taxes charged on said duplicate, 
until the third Monday of April next thereafter. (156.) 

The county treasurer is required to keep open his office during business 
hours. He and his depvity are authorized to administer oaths necessary to 
the discharge of the duties of the office, R. S. 1881, § 5915. 

Sec. 6426. "When taxes shall be paid — Penalty. 152. Any person 
or tax-payer charged with taxes on the tax duplicate in the hands 
of a county treasurer may pay the full amount of such taxes on or 
before the third Monday in April, or may, at his option, pay the 
first installment on or before such third Monday, and the remain- 
ing installments on or before the first Monday of November follow- 
ing : Provided, however, That all road taxes charged shall be in- 
cluded in the first installment ; And, provided, further, That in all 
cases where the first installment shall not be paid on or before the 
third Monday in April, the whole amount unpaid shall become 
due and be returned delinquent, and collected as provided by law; 



843] COUNTY TREASURER. [§ 6427 

and there shall be a penalty added of ten per cent, upon the 
amount of any installment not paid when due, which the persons or 
property assessed shall pay, together with cost of collection ; and 
if such taxes remain delinquent at the succeeding first Monday in 
November, there shall be a penalty of six per centum added to all 
such taxes that become delinquent at the preceding April and 
November settlements, and a penalty of ten per centum only shall 
be added to the current delinquency occuring on the first Monday 
in November. (i57-) 

1. The law does not contemplate either cojupotcjid interest or compound 
penalties, 27 Ind. 12. 

2. The payment of taxes in an illegal and void currency is a nullity, and 
the treasurer may, notwithstanding such paj^ment, proceed to collect them as 
in other cases; but he does not for that reason acquire any personal right of 
action against the person making such payment, for the recovery of the amount 
of taxes so attempted to be paid, 21 Ind. 74. 

3. The fact that the tax-paj^er had property in the county out of which the 
taxes could haye been made does not relieve him from the penalty. His duty is 
to pay the taxes to the treasurer, 27 Ind. 12 ; 68 Ind. 500. 

4. The first installment must be paid in full to prevent the entire tax for 
the year becoming delinquent; and if the second is not paid by the first daj^ of 
November the penalty will be added to such second installment, even though 
the first had been paid before the third Monday in April, 53 Ind. 196. 

5. The penalty is a part of the tax; that assessed upon taxes levied for county 
purposes belongs to the county, and for state purposes to the State, 119 Ind. 
473 ; 4 Kan. 114; 10 Kan. 318 ; 11 Nev. 300. 

6. No interest can be charged on the taxes falling delinquent. The penalty 
is all that can be added to them. 

7. Concerning cities and towns, see § 6419, note. 

Sec. 6427. Demand of delinquents. 153. After the third Monday 
of April, the treasurer shall ca.use a list to be made of the delin- 
quents, with the amount due from each, and with a separate col- 
umn headed ''Return," which list shall be certified to be correct 
by the county auditor. And he shall then proceed with such list, 
which, when so certified, shall be a sufficient authority, and have 
the same force and effect as an execution, to call, either in person 
or by deputy, upon every person named in the duplicate who is 
delinquent, and who resides in the county, and he shall make a 
demand for the amount of such delinquent taxes, and the penalty 
thereon, of each resident delinquent; and if the taxes and penalty 
are not paid on such demand, he shall proceed immediately to levy 
upon sufficient personal property of such delinquent to pay such 
taxes, penalty, and the costs of sale, and to sell the same in the 
manner and at the place hereinafter provided. In case such delin- 
quent tax and penalty is paid upon demand, such treasurer shall 
charge and receive from such delinquent, in addition to the taxes 
and penalty, the sum of twenty-five cents, and where a levy is 
made, he shall charge and receive, in addition to his other costs, 
the sum of fifty cents for such demand. When he can find no 
personal property of such delinquent within the county upon which 
to levy, after diHgent search therefor, he shall make, opposite the 



§§ 6428, 6429] TAXATION. [844 

name of said person on said list in the column marked " Return," 
a special return, setting forth the fact that he had made diligent 
search in the county for personal property of such delinquent, and 
was unable to find any upon which to levy for the payment of the 
taxes due thereon ; which return shall be prima facie evidence of 
the facts therein recited ; and the treasurer shall, if he have reason 
to believe that such delinquent have money, effects, or other prop- 
erty in his possession or on deposit that can be reached by any 
remedy known to the law, make known such facts to the prose- 
cuting attorney who shall cause such proceedings to be brought 
as will secure the payment of such delinquency and for his services 
in so doing shall receive ten per cent, of such money so collected 
and a docket fee of ten dollars to be taxed as costs in such action 
and paid out of moneys so collected. (158.) 

1. A tax duplicate legal upon its face is sufficient to justify the treasurer 
in seizing property for taxes, 28 Ind. 154. See § 6422, vote 5. As to the author- 
ity of a city treasurer, see 30 Ind. 133. 

2. The treasurer's lien is superior to an execution subsequently levied, 37 
Ind. 203. See 19 Ind. 146, and § 6422, note 7, and § 6446, 7iote. 

'\. A failure to make a demand does not relieye the tax-payer from the pen- 
alty, § 6426, note 3. 

4- City, § 3087; town, ^ 3351. 

Sec. 6428. When auditor shall not credit treasurer. 154. County 
auditors shall not be authorized to credit the treasurer with any 
uncollected delinquency for which he claims credit, unless such 
treasurer shall show, by proper returns as above provided, verified 
by his oath or affirmation, that he has diligently sought for and has 
been unable to find any personal property from which to collect 
such taxes, or that, having made a levy, he was enjoined or other- 
wise prevented from making sale or collection by a court of com- 
petent jurisdiction ; and in all cases where he has failed to make 
demand upon residents who are delinquent, or to levy and sell 
when personal property can be found in the county out of which 
to make the tax, he shall be liable, on his official bond, for such 
uncollected delinquency and ten per cent, damages thereon. (159.) 



ARTICLE iS— LEVY AND SALE OF PERSONALTY. 



SEC. 



6429. Levy on chattels — Delivery-bond. 6432. Manner of sale — Surplus. 

6430. Form of bond. 6433. Treasurer ma}' lew at any time. 

6431. Notice of sale. 6434. Fees for levy 'and sale. 

[1S91, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6429. Levy on chattels — Delivery-bond. 155. When he [the 
county treasurer] levies upon personal property, the delinquent 
may retain the possession of such personal property for sixty days, 
and until the day of sale, by giving such treasurer a joint and sev- 






845] LEVY AND SALE OF PERSONALTY. [§ 6429 

eral delivery-bond, payable to the State of Indiana, with good free- 
hold surety, to be approved by such treasurer, in a penalty at least 
double the amount of the taxes and costs, conditioned that such 
personal property will be delivered at the door o^ the court-house 
of the county, or [at] such other place as the treasurer may desig- 
nate, and at the time named therein, to be sold by such treasurer 
at public auction, or that such obligors will then and there pay 
such treasurer the amount of said delinquent taxes, penalty, and 
cost[s]. If such bond be not given he shall cause the property to 
be removed from the place the same is levied on, and to be stored 
in some secure place in his own name as treasurer. (160.) 

1. A mere paper levy, without taking actual possession, or putting one in 
charge of the property levied upon, or taking a delivery bond for it, is void, and 
not such a possession by the treasurer as will sustain replevin against him, 98 
Ind. 231. 

2. Before levy the treasurer must make a deinaiid for property, 14 Ind. 465. 

3. An assig7ime7it of the property to trustees or an assignee under the stat- 
ute, to pay debts, or even in bankruptcy, does not divest the lien of the State 
for taxes, 14 Ind. 465 ; 76 Ind. 68. 

4. The levy may and should be /"<9r all taxes due from the defendant, in the 
county, whether on real or personal property, or for poll tax. The personal 
property of the tax-payer is the pr-imary fujid out of which all the taxes owed 
by him may be collected, 14 Ind. 465 ; 82 Ind. 393. 

5. In a levy upon the personal property of a corporation for t^xes ov.ed by 
it, it can not deny its legal organization, nor any one else if it has ever acted as 
a corporation, 15, Ind. 26. 

6. The duplicate is sufficient td authorize and justify the seizure of personal 
property, § 6422, note 5. In justifying the seizure it is not necessary to aver 
that each requirement of the statute had been complied with in the preparation 
of the duplicate; a general allegation that the dviplicate had been delivered to 
the treasurer in conformity to law is sufficient; nor need it be averred that the 
seizure was by deputy, when such is the case. The absence of notice to the 
tax-payer, as provided by § 6224, is immaterial and not fatal to the levy, 28 Ind. 
154. The duplicate is a sufficient defense; it is not necessary to show that the 
taxes were legally assessed, 109 Ind. 10; 39 Ind. 172; 15 Ind. 26. 

7. The city treasurer has the same powers as the county treasurer, § 3070; 
30 Ind. 133. So has the to%V7t marshal § 3351. 

8. If one purchase property upon which there is a lien for taxes, whether 
delinquent or not, by such purchase he does not become perso7ially liable for 
the taxes, although the property he has purchased is liable, and may be levied 
upon and sold, 68 Ind. 500; 69 Ind. 153. 

9. The treasurer has power to lew a7id sell at a7iy ti7ne, whether before or 
after the April settlement, whether the list provided for by § 6427 has been 
made or not, and whether the delinquent taxes are charged upon the current 
duplicate or not, 109 Ind. 10. See § 6433. 

10. Replevin will not lie to recover possession of property taken for a tax 
assessment, even though the tax warrant has been issued contrary to law, 109 
Ind. 10. The remedy of the injured person is trespass, or assumpsit, or prob- 
ablv, especially in case of insolvency of the officer, injimction. See 43 Ind. 415. 

11. It may be shown that a receipt given for taxes was given by mistake, or 
that no money in fact was ever paid, 109 Ind. 10. 

12. While money for taxes volu7itarily paid can not be recovered back, 
money paid under a threat to levy, or after levy to secure a release, if paid 
under protest, can be recovered from the treasurer if the tax is illegal, 17 Ind. 
3^6, 336. 

13. City, V 30S5; town, § 3351. 



§§6430—6433] TAXATION. [846 



Sec. 6430. Form of bond. 156. Such bond may be substantially 
in the following form (the names, description, amount, and place 
of sale being changed to suit each particular case): 

We, Richard Roe as frincipal, and Jonathan Jennings as surety, arc 
jointly and severally hotnid nnto the State of Indiana in the j>enal sum of fifty 
dollars, on the follo-ojing condition: 

Whereas, Peter Clark, as treasurer of Clark county, has this day levied 
zcp07i one hay horse of the value of fifty dollars, to satisfy the taxes, fenalty,and 
costs for the year 1890, due from the said Richard Roe: Notv, if the said 
Richard Roe shall deliver said horse to said Clark, at ten o^clock A. M. of the 
tiventieth day of June, 1891, at the door of the court-house in Jeffersonville, to 
be sold to pay said taxes, penalty, and cost{s,] or -will then and there pay to said 
Clark the full amount of said, taxes, penalty , a?id cost{s,^ theii this bond shall be 
void; else, in full force. 

Wit?iess our ha^ids and seals. May 4, 1891. 

RICHARD ROE. [seal.] 

JONATHAN JENNINGS, [seal.] 

Approved by 7ne, May 4, 1891. 

Peter Clark, Treasurer of Clark County. (161.) 

Although a restraining order prevents a demand and sale of the goods 
upon the day advertised, yet, when it is dissolved, a demand may be made, and, 
if not complied with, suit brought on the bond, 56 Ind. 554. 

Sec. 6431. Notice of sale. 157. The treasurer shall give public 
notice of the time and place of sale, and of the property to be sold, 
at least ten days previous to the day of sale, by advertisement to 
be posted up in at least three public places in the township where 
such sale shall be made. (162.) 

City, § 3089. 

Sec. 6432. Manner of sale — Surplus. 158. Such sale shall be by 
public auction, at the court-house door or place designated by the 
treasurer ; and no more property shall be sold than sufficient to 
pay the tax[es,] cost[s,] and charges. The treasurer, if he receives 
no bid to the amount of the tax[es,] penalty, and cost[s] due, may, 
in his discretion, if he thinks the property is ample surety [security] 
for the tax, purchase the same in behalf of the State of Indiana ; 
and if the same is not redeemed within the period prescribed by 
law, he shall then re-expose the same for sale to the highest bid- 
der for cash, after giving the same notice as is provided herein- 
before; and if there be any surplus after paying the tax[es,] pen- 
alty, and cost[s,] said surplus shall be returned to the owner of 
said property. (163.) 

1. The owner's personalty, if within the jurisdiction, must be sold before 
the realty, 53 Ind. 196 ; 57 id. 276. As to proof that personal property could 
not be found, see 25 Ind. 134. 

2. The purchaser assumes all risk, and if the sale proves invalid he has no 
remedy. A city, town, or county can not be the purchaser at its own sale; nor 
can it bind itself by an agreement to warrant the title of a purchaser at such 
sale, 84 Ind. 467; 10 Allen, 49; 34 Me. 266; 30 Md. 139. City, § 3090; surplus, 
§ 3085. 

Sec. 6433. Treasurer may levy at any time. 159. Nothing con- 
tained in the preceding section shall prevent the treasurer from 



847] LEVY AND SALE OF PERSONALTY. [g§ 6434 643/ 

collecting delinquent taxes at any time by levy and sale of per- 
sonal property. Whenever he has reason to believe that any per- 
son charged with tax is about to remove from the county without 
payment of his tax, he may, at any time, levy such tax and 
charges by distraint and sale of personal property. And it is 
hereby made his duty to levy and collect all delinquent taxes, 
whether they be charged upon a current year's duplicate or other- 
wise, as well before as after his return and settlement for a current 
year's taxes. (164.) 
See § 6438 ; citj, § 3087. 

Sec. 6434. Fees for levy and sale. 160. For levying and making 
such sale of personal property to pay delinquent taxes, in addition 
to the fee for the demand upon the resident delinquent, the treas- 
urer shall be allowed the same fees and charges as are allowed by 
law to constables for making levy and sale of personal property on 
execution [§ 5985,] and expenses for taking care of property levied 
[on.] (165.) 

An officer who exacts a fee, under this section, when none has been earned, 
is guilty of extortion, 3 Ind. 93. For list of fees, see § 3077^. 



ARTICLE 19— PROCEEDINGS AGAINST CORPORATIONS. 

SEC. SEC. 

6435. Collection from corporations. 6437. Bill of discovery. 

6436. When tax is uncollected. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6435. Collection from corporations. 161. The county treas- 
urer shall demand payment of all taxes assessed on incorporated 
companies, except national banks and building and loan-fund asso- 
ciations, from the president or other proper officer of such com- 
panies, in the same manner as in other cases, and if not paid, shall 
proceed in the collection and payment thereof and penalties there- 
on in the same manner as in other cases, and shall be liable to the 
same penalties for the non-payment of moneys collected by him. 

(166.) 

Sec. 6436. When tax is nncollected. 162. If such county treas- 
urer shall not be able to collect any tax assessed upon any incor- 
porated company, he shall return the same to the county auditor, 
and be allowed therefor as in other cases ; and the county auditor 
shall certify the same, with the delinquent taxes, to the auditor of 
state. (167.) 

Sec. 6437. Bill of discovery. 163. If any such company shall 
not have personal or real estate out of which to make such delin- 
quent taxes, the auditor of state may, if he deem it expedient, 
cause to be filed, in a proper court, a bill against such company for 



§§6438, 6439] TAXATION. [848 

the discovery and sequestration of its property; which court shall 
order such part of the property of such company to be sequestered 
as they [?] shall [be] deem[ed] necessary for the purpose of satis- 
fying the taxes, penalties, and interest in arrears, with cost[s] of 
prosecution. And they [?] [it] may also, at their [its] discretion, 
enjoin such company and the officers thereof from any further 
proceedings under their act of incorporation, and may order and 
direct such other proceedings as they [?] [it] shall deem necessary 
to compel the payment of such taxes, penalties, interest, and costs; 
or such tax[es], penalties, and interest may be recovered, with 
cost[s], from such delinquent company, by action in the name of 
the State, or on the relation of the auditor of state, in the circuit 
court of the proper county. (168.) 



ARTICLE 20— COLLECTIONS FROM PERSONS REMOVED AND 

FIDUCIARIES. 

SEC. SEC. 

6438. Treasurer's special return. 6442. Fees of auditor and treasurer. 

6439. Auditor to certify' — Fee. <J443- Fiduciaries must pay taxes. 

6440. Entry on duplicate. 6444. Reimbursement. 

6441. Treasurer to collect. ^445* Sale of property of decedent or ward 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6438. Treasurer's special return, 164. Whenever any per- 
son who is delinquent for the non-payment of taxes shall have 
removed from the county in which he was assessed to any other 
county in this State, it shall be the duty of the said treasurer, in 
making such return, to write opposite the name of such person the 
words ''Removed from this county," also the name of the county 
to which such person shall have removed, if known to such treas- 
urer, [or] if the same can be discovered upon inquiry. (169.) 

1. See § 6433; city, § 3087. 

2. Tiie treasurer can not levj^ before the tax, is delinquent, unless he have 
such evidence that the debtor is about to leave the countj', Avithout payment of 
his taxes, as would satisfy a jury that he had cause to fear such a course. Any 
levy by the treasurer before such date, and without sufficient cause, renders him 
liable for conversion, 37 Ind. 253. 

Sec. 6439. Auditor to certify — Fee. 165. It shall be the duty of 
the county auditor, whenever he shah be advised by the return of 
the treasurer, or by any other means, that any delinquent tax- 
payer has removed, as aforesaid (if such auditor shall be satisfied 
that there is a reasonable prospect of cohecting said taxes), to 
make out a list of the taxes owing by such person, specifying 
therein what is state and what are county, school, and road taxes ; 
which list shall be certified to be correct, under the hand and seal 
of such auditor, and the said auditor shall transmit the said list to 
the auditor of the county to which such person shall have re- 



COLLECTIONS FROM PERSONS REMOVED, ETC. [§§ 644O 6443 

moved ; and the said county auditor, for making out and trans- 
mitting the said statement, shall be entitled to the fee of fifty 
cents. (170.) 

There is no reason why a city or town may not certify the taxes due from 
an inhabitant of such city or town who has removed to another city or town in 
this State to such city or town; but if he has gone into the country and taken 
all his property Avith him, there is no way in which the taxes can be collected. 

Sec. 6440. Entry on dnplicate. i66. The county auditor to whom 
such list shall be sent shall immediately enter the same on his tax 
duplicate, and charge the treasurer of his county with the amount, 
and instruct him to collect the same, (i/i.) 

Sec. 6441. Treasurer to collect. 167. The said county treasurer 
of the county to which such person has removed shall proceed to 
collect the said taxes, interest, damages, and fees, and, in so 
doing, he shall be governed by the provisions of this act and the 
laws [in force] regulating the duties of county treasurers; and 
when the same is collected, the county treasurer shall pay the 
same into the state treasury. The county, school, and road tax[es] 
and fees shall be entered to the credit of the county entitled to 
the same, and the treasurer of state shall pay the same over to the 
proper county treasurer. (172.) 

Sec. 6442. Fees of auditor and treasurer. 168. The auditor and! 
treasurer of the county to which such statement shall have been 
sent shall be allowed the same fees as they are now allowed or 
may hereafter be allowed for similar services. (i73-) 

Sec. 6443. Fiduciaries must pay taxes. 169. It shall be the 
duty of every administrator, executor, guardian, receiver, trustee, 
or [the] person having the property of any decedent, infant, idiot, 
or insane person in charge, to pay the taxes due upon the property 
of such decedent, ward, or party. And in case of his neglecting to 
pay any installment of taxes when due, when there is money 
enough on hand to pay the same, the county treasurer shall pre- 
sent to the circuit or other proper court of the county, at its next 
term thereafter, a brief statement, in writing, signed by him as such 
county treasurer, setting forth the fact[s] and amount of such de- 
linquency; and such court shall at once issue an order directed to 
such delinquent, commanding him to show cause, within five days 
thereafter, why such tax[es], penalty, and costs should not be paid; 
and upon his failing to show good and sufficient cause for such 
non-payment, the court shall order him to pay such tax[es] out of 
the assets in his hands belonging to the estate of said decedent, 
ward, or other person. And such delinquent shall not be entitled 
to any credit, in any settlement of said trust, for the penalty, in- 
terest, and cost[s] occasioned by such delinquency, or by the order 
to show cause, but the same shall be a personal charge against 
him, and he shall be liable on his official bond for such penalty, 
interest, and costs. (174.) 
54 



§§ 6444 ^44^] TAXATION. 



L"3- 



See § 3-64. This section does not prevent the administrator from testing 
the petition of the treasurer by demurrer, 103 Ind. 17. The Avard, heir, or cestui 
que trust is not a necessary or proper party, 78 Ind. 353; 80 Ind. 466. 

Sec. 6444. Eeimbursemeiit. 170. Every executor, administrator, 
guardian, trustee, receiver, or person having the property of an- 
other in charge as aforesaid, who shall be put to any personal ex- 
pense in paying the taxes of the estate of such decedent, ward, or 
other person, by advancing the money therefor, shall be allowed 
the amount of the same, with legal interest up to the time that he is 
reimbursed from the funds of such estate; and such advancem.ent 
shall be deemed, in all courts, a just charge against the estate of 
the person or persons for whose benefit the same was advanced. 

(175.) 

Sec. 6445. Sale of property of decedent or ward. 171. Nothing 
herein contained shall prevent the county treasurer from levying 
upon and selling the property of the estate of any decedent, or any 
ward, or person whose property is held in trust by another for the 
payment of any delinquent taxes in the same manner as other 
property is sold to pay delinquent taxes. And the remedy given 
to the county treasurers by the provisions of this act shall be re- 
garded as only cumulative; but every person holding property, 
either as executor, administrator, guardian, or in any other repre- 
sentative or fiduciary capacity, who shall neglect or refuse to pay 
the taxes listed and due thereon, shall be liable in an action to the 
heirs of such decedent, or to such ward, or cestui que trust, for any 
damages sustained by such neglect or refusal. (176.) 

1. The private property of the guardian can not be seized to satisfy the 
taxes of the ward, assessed against him as guardian, 23 Ind, 423. 

2. The treasurer may lawfully lew on the personal estate of the decedent in 
the hands of the executor to satisfy taxes against delinquent lands; and he is 
not bound to proceed against the beneficiaries, or to file a claim against the 
estate for such unpaid taxes, 17 Ind. 213 ; 47 id . lA^d, 

3. Taxes accrued upon layid during the lifetime of its owner should be paid 
by the administrator of his estate ; but those accruing thereon after his death 
must be made out of the land, and one purchasing the land at the administrator's 
sale can not deduct the amount thereof from the amount of purchase-money, 56 
Ind. 131, unless the land was sold free of the liens, 49 Ind. 280, 



ARTICLE 21— LIEN OF TAXES AND THEIR PAYMENT. 

SEC. ■ SEC, 

6446, Lien perpetual. 6451. Lien-holder may pay. and keep lien. 

6447. All property liable for tax, 6452. Tenant, paying' may retain from rent. 
644S. Effect of partial payment on sale. 6453. Treasurer, paying bv mistake, has lien, 

6449. Payment on part of real estate. 6454. Tax may be paid before sale, 

6450. Receipt for tax— Entry. 6455. Cash book— Monthly report. 

[1S91, p. 199. Approved and in force March 16, 1S91.J 

Sec. 6446. Lien perpetual. 172. The lien of the State for all 
taxes for state, county, school, road, or township purposes shall 



851] LIEN OF TAXES AND THEIR PAYMENT. [§§6447, 644S 

attach on all real estate, on the first day of April, annually, and 
such lien shall be perpetual for all taxes due from the owner 
thereof, which have heretofore accrued or shall hereafter accrue, 
with the interest and penalties in each case until payment ; which 
lien shall in no wise be affected or destroyed by any sale or trans- 
fer of any such real estate. (i77-) 

1. See § 30S6, 6422, note 7, and § 6427, note 2. The lien on land is per- 
petual, and the loss of personal property does not destro}^ it, 86 Ind. p. 550. 

2. Lands held bj husband and wife as tenants by the entirety are not sub- 
ject to a lien for taxes upon the husband's personal property ; and a purchaser 
of such lands for such taxes acquires no lien, 92 Ind. 298. The tax Jien is supe- 
rior to a prior purchase-money mortgage^ ()() Ind. 2,S^\ 122 Ind, 99. The liens 
of city or town taxes and county or state taxes are equal, neither superior to 
the other; and a purchaser at a sale by the one takes the land subject to the 
lien of the other; loi Ind. 326; 121 Ind. 180. 

3. A mortgagee C3.n not enjoin the sale of the land mortgaged, without pay- ■ 
ing the taxes rightfully due upon it, on the ground that the mortgagor has 
plenty of personal property, 76 Ind. 130, A subsequent school -fund mortgage 
is prior in effect to taxes previously assessed and due, 95 Ind. 175 ; 121 Ind. 416. 

Sec. 6447. . All property liable for tax. 173. All the property, 
both real and personal, situated in any county, shall be liable for 
the payment of all taxes, penalties, interest, and costs charged to 
the owner thereof in such county; and no partial payment of such 
taxes, penalties, interest, or costs shall discharge or release any 
part or portion of such property until the whole be paid ; which 
lien shall in nowise be affected or destroyed by any sale or trans- 
fer of any such personal property, and shall attach on the first day 
of April, annually, for the taxes of such year. (178.) 

See § 3086. The lien exists until the entire amount is paid, 14 Ind. 465 ; 122 
Ind. 372. Land is liable for foil tax of the owner, 40 Ind. 353; 41 Ind. 410. 
The land is liable for the taxes of the vendor so long as he remains in posses- 
sion, 40 Ind. 353. See 71 Ind. 281. Land is liable for the vendor's taxes, 
although such taxes accrue after he has mortgaged it, and the subsequent 
owner claims through such mortgage, 41 Ind. 410; 40 Ind. 353. An actual 
transfer before the taxes becom.e a lien is essential to prevent the taxes of the 
then owner so attaching as to not make the land liable, 71 Ind. 281 (parol gii't). 
A bankrupt sale does not release the lien nor avoid it. 76 Ind. 68; the State mav, 
however, follow the fund into the bankruptcy court, 76 Ind. 68. Individual 
property may be taken for firm taxes, 76 Ind. 68. 

Sec. 6448, Effect of partial payment on sale. 174. If any such 
partial payment be made, and the payer desires it to be applied on 
any particular property, real or personal, the property so desig- 
nated shall not be sold for the residue of the taxes due, if property 
of the same description can be found sufficient to make the balance 
due. (179-) 

1, Persojial taxes assessed against and charged to the owner of a lot be- 
come alien thereon, for the payment of which it is liable to be sold, 14 Ind. 465 ; 
40 id. 353; 41 Ind. 410, 

2. ^o partial payment of either the taxes or penalty, or of both, will release 
the lien from any part of the property, even in case of a sale of the part against 
which the taxes directly assessed were paid. 76 Ind, 130, 122 Ind. 372. See '^ 
3086^ city. 



§§6449 — 6451] TAXATION. [852 

Sec. 6449. Payment on part of real estate. 175. The treasurer 
shall receive the tax on a part of any real estate charged with 
taxes, provided the person paying such tax shall furnish a partic- 
ular specification of such part, and shall pay a like proportion of 
all the several taxes charged thereon for state, county, road, or 
other purposes ; and if the tax on the remainder of such real estate 
shall remain unpaid, the treasurer shall enter such specification on 
his return to the county auditor, to the end that the part on Avhich 
the tax remains unpaid may be clearly known, but such payment 
shall not discharge any lien of the State provided for in this act. 

(180.) 

One Avho takes a mortgage on a tract of land which has been previously 
sold for taxes assessed upon it and another tract owned by the same person, is 
not entitled, in an action by the purchaser to foreclose his tax lien, to have the 
ijiortgaged land relieved from the lien of the taxes assessed upon such other 
tract, and to have it confined to the latter, 109 Ind. 199. See 122 Ind. 372 (sub- 
rogation), § 3086, city. 

Sec. 6450. Eeceipt for tax — Entry. 176. Whenever any person 
shall pay the taxes charged on any property, the treasurer shall 
enter such payment in his cash-book, and give a receipt therefor, 
specifying for whom paid, the amount paid, what year paid for, 
and the property and value thereof on which the same was paid, 
according to its description on the duplicate, in whole or in part 
of such description, as the case may be ; and such entry and 
receipt shall bear the genuine signature of the treasurer, or his 
deputy, receiving such payment. And whenever it appears that 
any receipt for the payment of such taxes shall be lost or destroyed, 
the entry so made shall be read in evidence, in lieu thereof The 
treasurer shall enter the name of the owner or of the person pay- 
ing the tax, opposite each tract or lot of land, when he collects the 
taxes thereon, and the post-office address of the person paying 
such tax. (181.) 

A vendor may pay the taxes accruing upon the land sold and before his lien 
has been extinguished, in order to preserve his lien ; and the tax receipts are 
evidence of and admissible to prove the fact of payment, 70 Ind. 179. Before a 
tax receipt is admissible in evidence, it must be shoAvn that the taxes paid were 
duly assessed, 95 Ind. 383 : 33 Ind. 4S2. No quietus is issued on this receipt, 
R. S. i88i,§ 5913. 

Sec. 6451. Lien-holder may pay, and keep lien. 177. Any person 
who has a lien upon any lands returned for the non-payment of 
taxeSj may pay the taxes, interest, and charges thereon. And 
the receipt of the county treasurer therefor shall constitute an 
additional lien on such land to the amount therein specified; and 
the amount so specified shall be collectible, with interest thereon, 
in the same manner as the original lien. (182.) 

1. The purchaser xv^on. foreclosure who has paid the taxes accrued prior to 
the sale can not recover from the owner the amount of taxes paid, 52 Ind. 331; 
35 Ind. 527 (partners) ; 76 Ind. 130 (mortgagee). See § 6450, note. 

2. Subrogation in case of sale of one tract for taxes due on several, 122 Ind. 



853] LIEN OF TAXES AND THEIR PAYMENT [§§ 6452 6455 

372. A mortgagor or vendor may pay the taxes and foreclose his mortgage or 
lien and include the amount of taxes paid, even though there is nothing due 
lipon the mortgage or lien except the taxes, 117 Ind. 290; 35 Ind. 527 ; 76 Ind. 
130; even without waiting, before payment, lor them to become delinquent, 70 
Ind. p. 200. In all cases tlie person seeking to recover taxes paid on land must 
show that he had a lien on such land, 52 Ind. 331. But if one hold a tax lien 
on lands upon whicli it is sought to foreclose a mortgage, to which proceed- 
ings the lien -holder is a party, he must set up his lien, or he will be barred by 
the decree of foreclosure ; and so will any one taking an assignment of the cer- 
tificate of sale thereafter, 114 Ind. 303. 

Sec. 8452. Tenant, paying, may retain from rent. 178. Whenever 
the occupant or tenant of any real estate shall have paid the taxes 
therean; or the same shall have been collected of him, and any 
other person, by agreement or otherwise, ought to pay such tax, 
or any part thereof, — such occupant or tenant shall be entitled to 
recover, by action, the amount which such person ought to have 
paid, or to retain the same from any rent due or accruing to such 
person, from him, for the land so taxed. (183.) 

The tenant or occupant may recover of the owner the amount of taxes paid, 
whether he has possession under a contract with such owner or with some 
third person. The fact of tenancy or occupancy may be proved by parol, 69 
Ind. 37. A tenajit for life must pay the taxes, and preserve the remainder, if 
the income is sufficient; but in an action by the remainder-men against him 
for a failure to do so, the burden is on the plaintiff to show that the income 
was sufficient, 83 Ind. 240; 16 Hun. 226; 12 S. C. 422. If one tenant in common 
pay the taxes he rwd^y force contribution from his co-tenant, 114 Ind. 273. He 
can not obtain, by the purchase of a tax-title, a title adverse to his co-tenant, 75 
Ind. 88. Subrogation in case of sale of one tract for the taxes due on several, 
122 Ind. 372. See § 6495, note 7. 

Sec. 8453. Treasurer, paying by mistake, has lien. 179. When- 
ever any county treasury shall, by mistake, have charged himself 
with, and accounted for, any tax that shall not have been paid to 
him, such tax shall be deemed and taken as due him personally, 
whether in or out of office, and may be, by him, collected in the 
same way other taxes due and unpaid are collected. The same 
shall bear legal interest, and be collectible in the same manner as 
the original lien. (184.) 

Sec. 6451 Tax may be paid before sale. 180. Delinquent taxes, 
with penalty, interest, and cost[s] may be paid to the county treas- 
urer at any time before property is sold therefor. (1S5.) 

Sec. 6455. Cash-book — Monthly report. i8i. The county treas- 
urer shall keep a cash-book, in Avhich he shall enter, at the time 
of its reception, the amount of tnoney received by him for taxes 
and from all other sources, from any person, company, or corpora- 
tion, the date of its reception, and the name of the person paying- 
the same, designating particularly each item received for taxes. 
He shall, at the close of each month, report the total amount of 
such cash entries, and the account on which it is paid, to the 
county auditor, who shall preserve such report. And such county 
treasurer shah keep said cash-book in his office during his official 



§ 6456] TAXATION. [854 

term ; and, on going out of office, he shall deliver the same to the 
county auditor, to be preserved as a public record. (186.) 

Statement to state treasurer must be made each month, R. S. 1881, § 5642. 



ARTICLE 22— ASSESSMENTS BY TREASURER. 
[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6456. How lie shall assess, 182. Whenever the county 
treasurer shall discover or receive credible information ; or if he 
shall have reason to believe, at any time, that any of the property, 
real or personal, or the poll of any person, liable to pay tax, has 
not been assessed by the assessor ; or that any real or personal 
property has been omitted in the assessment of any year or num- 
ber of years from the assessment-book, or from the tax duplicate ; 
or that any person, company, or corporation has, from any cause, 
omitted to list any part of his, her, or their property for any year 
or number of years, or has in any year or number of years given a 
false or incorrect or partial statement of any of the property re- 
quired by this act to be listed ; or that any real property, by reason 
of defective description thereof, has failed to pay taxes for any year 
or number of years ; or that the tax for which the said property was 
liable has not been paid ; or shall discover, before the meeting of 
the county board of review, that any of the assessors have not re- 
turned the full value of the assessables of any person required to 
be listed, or have made any erroneous return of such assessables, — 
he shall report the same, forthwith, to the county auditor, whose 
duty it shall be to correct the tax duplicate in his office, and, at the 
same time, to correct, in like manner, the duplicate in the hands 
of the county treasurer, adding such property or polls thereto, and 
also adding the assessments and valuation[s] thereof. The county 
treasurer shall then collect the taxes thereon the same as if they 
had been assessed by the [legal] assessor. All property so assessed 
shall be rated at its true cash value. As to notice to the person 
when not present, if residing in the county, the treasurer shall be 
governed by the provisions of the foregoing sections in relation to 
assessors and auditors [§§ 6393 and 6416] ; but he shall not be re- 
quired to assess the property upon actual view, or to furnish the 
owner thereof with a blank list. (187.) 

1. The county auditor may assess"^ omitted property, § 6416; and so may the 
township assessor, in certain contingencies, § 6393, see 17 Ind. 48; the board of 
review, § 6397, and the city treasurer, § 3070; 30 Ind. 133. There can be no 
assessment of omitted property by a town, for the reason that a town has no 
power to ma,ke any assessment; but if the assessment of omitted property is 
ijiade by the county auditor, such assessment may be certified to the town, the 
assessment roll corrected, and tax collected. 

2. The county or city treasurer can neither add to nor take from the assess- 
ment; he can only add omitted propertv, 30 Ind. 133 ; i Ind. App. — . See 
§ 6416, note 4. 



855] SALE OF REALTY. [§§^457, 6458 

3. After the tax duplicate has been placed in the treasurer's hands, either 
he or the auditor may add the omitted property, 33 Ind. iii. 

4. Formerly omitted property could not be assessed iov fast j^ears, only for 
the current year, 80 Ind. 195. See § 6416, iiote 2. 

5. The property need not be in actual vieiv when the treasurer lists or adds 
it to the tax duplicate, § 6416, note 2. 



ARTICLE 23— COLLECTION BY SALE OF REALTY. 

SEC. . SEC. 

6J57. Delinquent list — Certificate. 6462. Pa^-ment of bids — Penalty. 

645S. Copy, how posted and published. 6463. Auditor to attend, and keep record. 

6459. Manner of sale. 64^4. Certificate of sale — Assignment. 

6460. Sale of part of tract. 6465. Guaranty of treasurer. 

6461. Sale of more than one tract. 

[1891 S., p. 199. Approved and in force March 6, 1891.] 

Sec. 6457. Belinquent list — Certificate. 183. Between the first 
Monday of December and the first of January, annually, the 
county auditor shall make out, and record in a book to be pro- 
vided for that purpose, a list of lands and lots returned and remain- 
ing dehnquent for taxes, including as well the lands of those whose 
personalty, as assessed on the tax duplicate, is less in value than 
the taxes charged against the lands or lots, describing such lands 
or lots as the same are described in the tax duplicate, and charg- 
ing them with the amount of delinquent tax[es], with interest and 
a penalty often per centum on such taxes; also with the taxes of 
the current year ; and shall certify to the correctness thereof, with 
the date when the same was recorded, and sign the same, by him- 
self or his deputy, officially. (188.) 

Sec. 6458. Copy, how posted and published. 184. The auditor 
shall cause a copy of such list to be posted on the door of the 
court-house, and also in some public and conspicuous place in 
each township, at least three weeks before the day of sale ; and 
shall have such list printed in one weekly newspaper of the county, 
for three consecutive weeks before such sale. It shall only be 
necessary, in the posted list, to state in the aggregate the amount 
of taxes, penalty, interest, and cost[s] due thereon, including the 
taxes for the current year. To such list shall be attached, and in 
like manner so posted, a notice that so much of said lands and lots 
as may be necessary to discharge the taxes, interest, and charges 
which may be due thereon, or due from the owner[s] thereof at 
the time of sale, will be sold at public auction, at the court-house 
door of such county, on the second Monday in February next 
thereafter, commencing at ten o'clock of said day, and continuing 
from day to day thereafter until all are offered. The county audi- 
tor shall, on or before the day of sale, insert at the foot of such 
list, on his record, a copy of such notice, and certify on said 
record, immediately following such notice, the manner in v.'hich 
the same was posted, and the place[s] where the same was posted, 



§ 6459] TAXATION. [856 

and for what length of time it was printed and posted. The 
expense of such printing, when had, shall be paid out of the 
county treasury ; and it shall not exceed twenty cents for each 
description. (189.) 

1. C/A', § 3091. A county auditor who publishes the delinquent list in his 
own paper can not recover from the county the cost of such printing , unless, 
possibly, the board of county commissioners request him to publish it, and even 
then it may be doubted, 72 Ind. 42. 

2. Any one may contest the allowance made to the county auditor, whether 
he has paid his taxes or not; so long as he has paid or is liable to pay them, it 
is sufficient to authorize him to appeal from the allowance, 13 Ind. 247; 14 Ind. 
284. 

3. The county auditor is the agent of the county, authorized bv statute to 
make a special contract for the publication of the delinquent list; and the 
county board, in'making an allowance for such publication, must be governed 
by the amount which the auditor agreed to paj^; and it can not be shown that 
the list could have been published for less than the amount agreed upon, 14 
I-nd. 284; 37 Ind. 347. 

4. The fact that Wxo. publication is not in time will not prevent the publisher 
recovering from the county, if the fault is not his, 37 Ind. 347. 

5. If the commissioners allow an excessive amount, it can not be recovered 
back, 42 Ind. 32. 

6. Estimate of amount due, how made -andev former la-v, 42 Ind. 32. Co7i~ 
stitutionality of section fixing the price in the fee and salary law of 1879, 81 
Ind. 125. 

7. The publication can not be in a newspaper only published on Sunday; 
and if a publication during one of the three weeks falls on Sunday, — in either 
event the sale will be void, 87 Ind. 158, S. C. 44, Am. R. 756. 

Sec. 6459. Manner of sale. 185. On the day mentioned in the 
notice, the county treasurer shall commence the sale of such lands, 
and shall continue the same from day to day until so much of each 
parcel assessed, or belonging to each person assessed, shall be sold, 
as will pay the taxes, interest, and charges thereon or chargeable 
to such person in said county. The person offering, at said sale, to 
pay the required sum for the least quantity of any tract shall be 
considered the purchaser of such quantity : Provided, No bid shall 
be received from any person not a resident of the State of Indiana, 
until such person shall file with said treasurer an agreement in 
writing consenting to the jurisdiction of the circuit court of the 
county in which such sale shall be made, and also filing with such 
treasurer an appointment of som.e citizen of said county as agent 
of said purchaser, and consenting that service of process on such 
agent shall give such court jurisdiction to try and determine any 
suit growing out of or connected with such sale for taxes. (190.) 

1. A statute authorizing the sale of land for delinquent taxes must be strict- 
ly construed, 70 Ind. 536 ; 2 B. 421 ; 4 Ind. 132 ; 91 Ind. 515 ; 25 Ind. 134. 

2. A sale of land for taxes, Avithout a demayid upon the owner for personal 
property, is void ; but to maintain an action to set aside the sale, the party must 
plead or prove a tender of the sum necessary to redeem. Where the sale is set 
aside, the land shall again be placed on the delinquent list, 64 Ind. 360. See 
§ 6479, note 4. 

3. Adjourning a sale from the court-house door, by giving every person 
present notice of the fact of adjournment to a place fifty-three feet, and in full 



857] SALE OF REALTY. [§§6460,6461 

view thereof, opposite such door, was held not to avoid the sale, 19 Ind. 148; 
2 Mich. 157, 

4. The sale may be conducted by the deftity auditor, 18 Ind, 27. 

5. Formerly, under the law of 1872, n private fax sale was allowed, but not 
by a tozvn. Such sales were strictly construed, 70 Ind. 536. See 99 Ind. 352. 

6. A sale of land for taxes assessed against a former owner who, at the time 
of the tax sale, has plenty of personal property may be enjoined, 95 Ind. 156. 

7. Where txvo lots, one Avith a house upon it and the other unimproved' 
both together worth at least four hundred dollars, were jointly sold together for 
a tax of four dollars, which was due on both lots, the sale was set aside as ille- 
gal, 2 B. 421. 

8. In an action to set aside a tax sale it must be alleged that the real estate 
described was not legally subject to taxation for state and county or city or 
town purposes, or that the delinquent and current taxes and costs, for which it 
was sold, were not properly and legally assessed and charged against him and 
his property or that the several sales of his real estate for taxes by the treasurers 
of the county and city or town respectively, were, in some manner or for some 
cause, irregular, illegal and void, or that he had redeemed, or offered to redeem, 
his real estate from the tax sales thereof, in the manner prescribed by law, or 
his complaint will be had on demurrer for want of facts, 90 Ind. 520. See 
^ 6495. 

9. It is the duty of the mortgagor in possession, or his grantee, to keep 
down the taxes ; and neither can purchase the land at tax sale and hold it as a 
lien superior to the mortgage, 99 Ind, 566. 

10. A tax sale will not be set aside, where the taxes have been legally as- 
sessed, on the ground that there was no 7iotice of the sale, until the owner or 
plaintiff has paid the taxes due or offers to pay them, 99 Ind. 352. Nor can there 
be any relief from a double assessment until one of them has been paid or ten- 
dered, 121 Ind. 416. 

11. City sale, § 3091 ; toTJ7i sale, § 335 1- 

Sec. 6460. Sale of part of tract. i86. Whenless than the whole 
of any tract of land shall be sold, the quantity sold shall be in a 
square form, as near as practicable, at the most north-westerly 
corner of the tract ; and when less than the whole of any in-lot or 
out lot of any city or town shall be sold, the part sold shall 
extend from the main or principal street, road, or alley, forming 
the most convenient front to such lot, to the rear of such lot, and 
so as to bound the same by lines as nearly parallel with the outlines 
of such lot as practicable. (191.) 

Sec. 6461. Sale of more than one tract. 187. When more than 
one tract or lot belonging to the same person shall be for sale at 
the same time, in the same municipal corporation or township, a 
part of one of said tracts or lots shall be offered first for the pay- 
ment of the whole sum due from such owner on all such delinquent 
lands or lots, or otherwise; and if no person shall bid off a part of 
such tract or lot for the sum required, the said tract or lot shall 
then be offered to the highest bidder for cash ; and if any amount 
shall yet remain due, or if no person bid for a part or all of one 
tract or lot, each of the other tracts or lots shall be offered in like 
manner until the required sum is realized ; and if no one bids upon 
a part or all of said tracts or lots, separately, enough to pay the 
amount due, when [then] the Avhole of said tracts and lots shall be 



§§6462—6464] TAXATION. [858 

offered together, and sold to pay the taxes, penalty, interest, and 
costs thereon. (192.) 
See ^ 3091. 

Sec. 6462. Payment of bids — Penalty. 188. Where such sale 
is made, the purchaser[s] at such sale shall immediately pay the 
amount of their respective bids to the treasurer, who shall pay 
the surplus, if any, to the person entitled thereto ; or if he has 
doubt, or if a dispute arises as to the proper person, the same 
shall be paid into the county treasury. In case the purchaser fails 
to pay his bid, the land shall be again, forthwith, offered for sale, 
the same as if no sale had been made ; and the purchaser so failing 
shall forfeit and pay, for the use of the common school fund of the 
county, a penalty of twenty-five per centum on the amount of his 
bid, to be recovered by action of debt, in the name of the treas- 
urer, before any justice of the peace or court having jurisdiction. 
And the prosecuting attorney shall conduct such suit ; and for his 
services, a fee of five dollars shall be taxed against such delinquent 
purchaser. (193) 

Sec. 6463. Auditor to attend and keep record. 189. The county 
auditor shall attend, either in person or by deputy, as the clerk of 
the sale of such delinquent land[s], and shall enter the same on a 
sufficient record-book, giving a description of the proper tract or 
lot, showing how much of each was sold, to whom, and the price, 
or whether the same remains unsold. (194-) 

The city and town clerks keep the records at city and town sales. 

Sec. 6464. Certificate of sale — Assignment. 190. After payment 
shall have been made, the county auditor shall give the purchaser 
a certificate, in writing, describing the land so purchased, the sum 
so paid, and the time when the purchaser v/ill be entitled to a 
deed for said land. And where the county surveyor has surveyed 
and furnished a sufficient description, said auditor shall take care 
that the land is described and identified by that description. Such 
certificate shall be signed by the county auditor, who shall register 
the same in his office before the delivery to the purchaser. Such 
certificate shall be assignable, but no assignment thereof shall be 
valid unless indorsed on such certificate and acknowledged before 
§ome officer authorized to take acknowledgment of deeds, or the 
proper county auditor, [and recorded] or recorder in his office, 
for which record said auditor shall be entitled to a fee of twenty- 
five cents, to be paid by the purchaser and treated as a part of the 
costs of the sale. (195.) 

Mere delay in issuing t\\Q certificate, if the fat-Jt of the officer, does not avoid 
the sale, 16 Ind. 116. Formerl}^ the certificate entitled the holder to possession 
of the land; and even if the sale Avas void, the holder of such a certificate was 
not liable to a prior lien-holder for the rents of the land, unless he was in pos- 
session under his certificate or had received such rents, 85 Ind. 481 ; Such pos- 
session, however, entitled him to the ownership of the rents, 90 Ind. 520. The 
assignee of a certificate when assigned obtains'^no greater right than the pur- 



859] REDEMPTION. [g§ 6465, 6466 

chaser, 99 Ind. 567 ; 70 Ind.p.417. A void assignment can not be corrected nor 
enforced, 79 Ind. 233. In an action by the purchaser to foreclose his lien the 
certificate and deed based thereon is admissible in evidence without even show- 
ing that there was no personal property subject to levy and sale, 108 Ind. 97. 
One made a defendant to a foreclosure proceeding must set up his tax lien, held 
by virtue of his tax certificate, or he will lose it, 114 Ind, 303. City, § 3094. 

Sec. 6465. Guaranty of treasurer. 191. It is hereby made the 
duty of the county treasurer, at the time he sells lands for taxes 
unpaid and delinquent, as is directed in this act, and after the pur- 
chaser[s] of land under such sales shall have [made] payment of 
the amount of their bids, respectively, to indorse upon and annex 
to each certificate to be given to the purchaser by the county 
auditor, as required by this act, his written guaranty, signed by 
him, warranting that the taxes due upon the tract [or tracts,] lot 
or lots, piece or parcel of land, which, or a portion of which, are 
named in such certificate, [for the years for which the same shall 
have been returned delinquent, have never been paid by the 
owner, nor by any person on his behalf, and that the same were 
yet due and unpaid at the time of the sale thereof named in such 
certificate.] And if it should, at any time, appear that such 
county treasurer had, before the time of making such guaranty, 
received, either in person or by deputy, the taxes assessed against 
such tract or tracts, lot or lots, piece or parcel of land, the holder 
of such certificate is entitled to his action upon such written guar- 
anty aforesaid, forthwith, upon the fact becoming known that 
such lands were improperly sold, and without Avaiting the accrual 
of any special damage to such holder ; and, in such action, the 
measure of damages to which such holder of such certificate is 
entitled shall be double the amount paid by such holder, as taxes, 
interest, penalty, and charges, with the lawful interest thereon. 
Or such holder is entitled to his action on the official bond of such 
treasurer, against him and his sureties, as for dereliction in duty ; 
in which action the measure of damages is the same as above men- 
tioned. (196.) 

See § 6499. 

ARTICLE 24— REDEMPTION OF REALTY. 

SEC. SEC. 

6466. Time and cost. 6473. When auditor to be arbiter. 

6467. By infants, idiots, and the insane. 6474. From taxes assessed conjointly. ' 
646S. Of an undivided part. 6475. Recovery in such cases. 

6469. Of a share of an undivided part. 6476. Priority of judgment recovered. ^ 

6470. Of a specific part. 6477. Improvements, how afl^ected by. 

6471. Of a specific part of undivided realty. 647S. Auditor's memorandum and certificate. 

6472. Contribution, ho^v made. 

[1S91, p. 199. Approved and in force March 6, 1S91.] 

Sec. 6466. Time and cost. 192. The owner or occupant of any 
land sold for taxes, or any other person having an interest therein, 
may redeem the same at any time during the two years next ensu- 
ing, in the following manner: If redeemed within six months from 



§§ 6467 6470] TAXATION. [S60 

the day of sale, he shall pay to the county treasurer, for the use 
of the purchaser, his heirs or assigns, the full sum of the purchase- 
money named in his certificate, and all the costs of sale, together 
with ten per centum in addition ; if redeemed after six months and 
within one year, he shall pay, in like manner, the purchase-money, 
together with costs and fifteen per centum in addition ; if redeemed 
after one year, and within two years, he shall pay, in like manner, 
the purchase-money, together with costs and twenty-five per cent. 
in addition ; and he shall also pay all taxes which have been paid 
thereon, with interest at the rate of six per centum per annum on 
such taxes. And in case the party purchasing the land, or his as- 
signs, fails to take a tax-deed for the land so purchased, within six 
months after the expiration of the two years, no interest shall be 
charged or collected from the redemptioner after that time. (197.) 

1. See city^ § 3092; to~iVji, § 3352. This section has reference to sales, it has 
been held, that are not void, 102 Ind. 515 ; but this case was virtually overruled 
in III Ind. 467, and in 114 Ind. 84; and it is now held that if a tax sale is inef- 
fectual to carry title, but carries to the purchaser the lien of the State, the delin- 
quent tax-payer can redeem from such sale only upon the conditions prescribed 
in this section, 124 Ind. 254. 

2. There is no law authorizing the redemption of perso7ial pro;perty. 104 
Ind. 459. 

3. If a co-tenant takes an assignment of the tax certificate it amounts to a re- 
demption of the land, and the certificate is a nullity, unless the assignment was 
taken under an agreement with all his co-tenants that he could take and hold it 
the same as if he were a stranger to the land, 75 Ind. 88. 

Sec. 6^467. By infants, idiots, and the insane. 193. Infants, idiots, 
and insane persons may redeem any lands belonging to them sold 
for taxes, within two years after the expiration of such disability, 
in the same manner as provided in the preceding section for re- 
demption by other persons. (198-) 

There is no exception in favor of a married woman, 90 Ind. 520. At two 
years from the date of sale, the auditor issues, upon request, a deed for the land 
sold, although at the time of sale and when the deed is executed, the owner is 
an infant, idiot, or an insane person, 97 Ind. 565. 

Sec. 6468. Of an undivided part. 194. Any person claiming 
an undivided part of any land sold for taxes may redeem the same, 
on [by] paying such proportion of the purchase-money, interest, 
penalty, and subsequent taxes as he shall claim of the land sold. 
(199.) 

Sec. 6469. Of a share of an undivided part. 195. Any person 
claim.ing an undivided share in any land out of which an undivided 
part shall have been sold for taxes may redeem his undivided 
share, by paying such proportion of the purchase-money, interest, 
penalty, and subsequent taxes as he claims of the land sold. 
(200.) 

Sec. 6470. Of a specific part. 196. Any person claiming a spe- 
cific part of any lands sold for taxes may redeem his specific part, 



86 1 ] REDEMPTION. [§§ 64/ 1 6475 

by paying such proportion of the purchase-money, interest, pen- 
alty, and subsequent taxes as his quantity of ground shah bear to 
the v/hole quantity sold. (201.) 

Sec. 6471. Of a specific part of nndivided realty. 197. Any per- 
son claiming a specific part of any lands out of which an undivided 
part shall have been sold for taxes charged on the whole tract or 
lot, m.ay redeem his specific part by paying such proportion of the 
purchase-money, interest, penalty, and subsequent taxes as his 
quantity of acres shall bear to the v/hole quantity taxed. (202.) 

Sec. 6472. Contribution, how made. 198. Any person claiming 
a specific part of any lands out of which a specific part belonging 
to some other owner shall have been sold for taxes charged on the 
whole tract or lot, may exonerate himself from all liability to con- 
tribute to the owner of the part sold, by paying into the county 
treasury, at any time before the expiration of the time allowed for 
redemption, such proportion of purchase-money penalty, and 
interest as his quantity of acres will bear to the whole taxed, and 
such paymicnt shall operate as a redemption of a proportionate 
part, according to the amount paid, of the land sold. (203.) 

Sec. 6473. When auditor to be arbiter, 199. In every case where 
a partial redemption is asked for, pursuant tD the preceding five 
sections, the county auditor, upon the application of the redemp- 
tioner, after notice to the holder of the certificate, shall determine 
the proportion to be paid by the party applying to redeem ; and 
his decision shall be final thereon. For his services in stating the 
proportion, the redemptioner shall pay him fifty cents. And in 
every case of a partial redem.ption, pursuant to either of the said 
sections, the quantity sold shall be reduced in proportion to the 
amount paid on such partial redemption, and the county auditor 
shall convey accordingly. (204.) 

Sec. 6474. From taxes assessed conjointly. 200. Whenever the 
land of any one person shall be sold for taxes assessed conjointly 
on the lands of such person and the lands of another person, and 
such other person shall not pay his due proportion, the person 
whose lands shall be sold may redeem the same in [by] paying 
the amount due to the purchaser; and he shall be entitled to 
recover from such other person whos'e lands were assessed with 
his, a just proportion of the redemption money so paid, with law- 
ful interest from the time of such redemption, but no suit shall be 
brought for the recovery of such proportions until after the expira- 
tion of the time allowed for redemption. (205.) 

See § 6321. 

Sec. 6475. Recovery in such, cases. 201. If such owner shall not 
redeem the lands sold, and the same shall be conveyed by the 
county auditor, such owner may recover from such other person 



§§ 6476 6479] TAXATION. [862 

the same proportion of the value of the land sold and conveyed 
that he ought to have paid of the tax[es], interest, and charges 
for which the land shall have been sold. (206.) 

Sec. 6476. Priority of judgment recovered. 202. Every judgment 
obtained under either of the last two sections shall have priority, 
as against the lands of the defendant therein on which the tax was 
assessed and for which such proportionate part ought to have been 
paid, to all mortgages executed and all judgments recovered since 
the time when such taxes were assessed. (207.) 

Sec. 6477. Improvements, how affected by. 203. In case any last- 
ing and valuable improvements shall have been made by the pur- 
chaser at a sale for taxes, or by any person claiming under him, 
and the land on which the same shall have been made shall be 
redeemed as aforesaid, the premises shall not be restored to the 
person redeeming until he shall have paid or tendered to the 
adverse party the value of such improvements; and, if the parties 
can not agree on the value thereof, the same proceedings shall be 
had in relation thereto as shall be prescribed in the law existing at 
the time of such proceedings for the relief of occupying claimants 
of lands. No compensation shall be allowed for improvements 
made before the expiration of two years from the date of sale for 
taxes. (208.) 

See § 6497, 7wte. 

Sec. 6478. Auditor's memorsndum and certificate. 204. When 
lands sold for taxes, or any portions thereof, shall be redeemed, the 
county auditor shall insert a memorandum of such redemption, 
the quantity or description of the portion redeemed (if not the 
whole), the date thereof, and by whom made, on his record of 
sales of land for delinquent taxes, and sign the same officially, and 
shall likewise give a certificate thereof to the person redeeming, 
(209.) 





ARTICLE 25— CONVEYANCE OF REALTY. 


SEC. 


SEC. 


^: 


Tax-deed. 6486. Proceeding-s when sale invalid. 


Form of deed, 64S7. When sale is invalid. 


6481. 


Form may vary. 64870. Refunding taxes. 


6482. 


Auditor's fees. 6487^1. State's portion. 


6483. 


Deeds under former laws. 6487c. Appeal." 

Certificates when cancelled— Lost cer- 64S8. Lien of State, when transferred. 


6484. 




tificates. 64S9. Name of o^vner immaterial. 


6485. 


Register of sales. 6490. Proceedings when purchaser dies. 



[1891, p. 199. Approved and in force March 16, 1S91.] 

Sec. 6479. Tax-deed. 205. If no person shall redeem the lands 
sold for taxes within two years from the sale, at the expiration 
thereof, and on production of the certificate of purchase (and in 
case the certificate covers only a part of a tract or lot of land, then 



86s] CONVEYANCE OF REALTY. [§ 6480 

accompanied with a survey or description of such part, made by 
the county surveyor), the auditor of the county in which the sale 
of such lands took place shall execute to the purchaser, his heirs 
or assigns, in the name of the State, a conveyance of the real 
estate so sold, which shall vest in the grantee an absolute estate in 
fee-simple, subject, however, to all the claims which the State may 
have thereon for taxes, liens, or incumbrances. In making such 
conveyance, when tv/o or more parcels, tracts, or lots of land are 
sold for the non-payment of taxes to the same purchaser or pur- 
chasers, or the same person or persons shall, in any Avise, become 
the owner [or owners] of the certificates thereof, all of such parcels 
shall be included in one deed. (210.) 

1. Deed on ci^y sale, and effect, § 3094; on fozvn sale, § 3351. The tax-deed 
issued bj a city is signed by the clerk and witnessed by the treasurer; the one 
issued by a town is signed by the clerk and witnessed by the marshal. See 
§ 3094, note 3. 

2. The deed is issued although the owner of the land at the date of the sale 
and when issued is under le^al disabilities, 97 Ind. 565. See 60 Ind. 478. 

3. A school fund mortgage is superior as a lien to a tax lien created by the 
assessment of taxes before such mortgage was given; and the holder of a tax- 
deed takes it with these infirmities, 95 Ind. 175 ; 121 Ind. 416. 

4. A complaint to enjoin the issiie of an auditor's t2ix.-deed upon an illegal 
sale, must aver a tender and make an offer to pay the lawful taxes to the 
defendant, 102 Ind. 198; 64 Ind. 360; and the money must be brought into 
court, 97 Ind. 565; 114 Ind. 84; even in case of a double assessment^ 121 Ind, 
416. 

Sec. 6480. Form of deed. 206. Such conveyance shall be exe- 
cuted by the county auditor under his hand and seal, be witnessed 
by the county treasurer, and be acknowledged before the county 
recorder or any other officer authorized to take acknowledgments, 
and the same shall be recorded in the recorder's office before de- 
livery. A fee for recording shall be paid by the purchaser, and 
shall be included in the costs of sale. Such deed shall h^piima 
facie evidence of the regularity of the sale of the premises de- 
scribed in the deed and of the regularity of all prior proceedings, 
and prima facie evideifCe of a good and valid title in fee-simple in 
the grantee of said deed. And such deed shall be in the following 
form, as nearly as the nature of the case will admit, namely: 

Whereas, A. B. did, on the day of , 18 — , produce to the tinder- 
signed, C. D., auditor of the county of , in the State of Indiana, a certifi- 
cate of purchase, in writing, hearing date the day of , i8 — , signed 

by E. F., who, at the last mentioned date, was auditor of said county , from which 

it appears that the said A . B. did, on the day of , i8 — , purchase at 

public auctioti, at the door of the court-house in said county, the tract, parcel, or 

lot of land lastly in this indenture described; and xvhich lot %vas sold to , 

for the su?n of dollars and cents, being the amount due on the fol- 

lorving tracts or lots of land, returned delinquent, in the name of G. H.,for the 

non-payment of taxes, costs, and charges for the years ,namely: [Here set 

out the lands offered for sale]; which said lands have been recorded, anion i^- other 
tracts, i7i the office of said auditor, as dcli^iquent for the non-payment of taxes, 
costs, and charges due for the year last aforesaid, and a True copy of said record 
trans7nitted to the office of the aicditor of state, in majincr and form prescribed 



§ 6480] TAXATION. [864 

hy lazv^and legal fuhlicaf ion made of the sale of said lands. And it appeariyig 
that the said A.B.is the legal otvner of said certificate of ;purcJiasc,and the time 
fixed bv laxv for redeeming the land therein described having novj expired, {and 
neither] the said G. //., nor any person in his behalf, ha-Ji7ig paid or tendered 
the amount due the said A. B.,o}i account of the aforesaid purchase, and for the 
taxes bv him since paid; and the said A. B. having dejnanded a deed for the 
tract of land mentioned in said certificate, andivhichivas the least quantity of the 
tract above described that -would sell for the amount due thereon for taxes, costs, 
aitd charges, as above specified; ajid it appearing from the records of said coun- 
ty auditor's ofiice that the aforesaid lands -were legally liable for taxatioji, and 
had been duly assessed and properly charged on the duplicate tvith the taxes for 
the years / 

Therefore, this indenture, made this day of , 18 — , bctiveen the 

State of Indiana, by C. D., auditor of said county, of the first part, and the said 
A. B., of the second part, vjitnesseth: That the said party of the first part, for 
and in consideration of the premises, has granted, bargained, and sold unto the 
said party of the second part, his heirs and assig?is forever, the tract or parcel 

of land me7itioned in said certificate, situate in the county of , and State 

of Indiana^ and described as follows, Jta?nely: [Here set out the particular tract 
or parcel sold] ; to have a7id to hold the said last-mentio?icd tract or parcel of 
land, 'vith the appurtenances thereto belonging, to the said party of the second 
part, his heirs and assigfis forever, in as full and ample a manner as the auditor 
of said county is empoxvered by lazv to sell [convey] the same. 

In testimony xvhereof, the said C. D., auditor of saido county of , has 

hereunto set his hand, and afiixed the seal of the board of coutity commissiojiers, 

the day and year last above -xvritten, [C] [D.] . [Seal.] 

Witness: ■ Auditor of County. 

State of Indiana, ) 

y- J Y ss: 
County, ) 

Before me, the tutdersigned, in and for said county, this day person- 
ally came the above-named C. D., auditor of said county , and acknovjledged that 
he signed and sealed the foregoi7ig deed for the uses a^id purposes therein men- 
tio?ied. 

In witness ivhereof, I harw hereU7ito set 7ny ha7id and seal, this day of 

, iS-. 

(211.) [Seal.] 

1. The steps necessary to vest the power of sale in the treasurer must be 
proved aliunde the tax-deed, notwithstanding the clause providing that the deed 
shall be /r/wrt/rtc/e evidence of the regularity of the sale and of the premises 
described in it, and of the regularity of all prior proceedings, and of a good and 
valid title in fee-sim.ple in its grantee, 23 Ind. 433 ; 4 B. 70,494. (In the, two last 
cases the statute provided that " such conveyance shall be conclusive evidence 
that the sale was regular according to the provision^ of this act.") The legisla- 
ture can not make the recitals in the deed conclusive, 23 Ind. 46; 19 Ind. 470. 

2. Unless -vit7iessed by the county treasurer the deed is not presumptive 
evidence of a legal title in the holder, 93 Ind. 256. In such a case there can be 
no recovery of the land, although the tax lien may be foreclosed, 100 Ind. 45. 

3. A tax-deed can not be reformed, 86 Ind. 81 ; but not describi7ig the cou7ity 
and State, where the section, township and range is given, does not render it 
void. Such a deed is valid, 86 Ind. 81. 

4. Of this deed it has been said: "The statute does not make the deed 
prima facie evidence of title; it only makes it evidence of the particular facts 
recited in it, and there are many material facts requisite to show a valid sale 
under the statute that are not recited in the deed, all of which must be shown 
affirmatively by the party claiming under such title," 25 Ind, 134; 57 Ind. 276. 
" We take it," says the court elsewhere, " to be clear that the provision that 
the conveyance shall vest in the grantee an absolute estate in fee-simple has 
reference to the quantity of estate to be conveyed by such deed, and can not be 
taken to mean that such estate shall vest in the grantee unless the law has been 
complied with, in the steps required to be taken to authorize the sale, and in 



865] CONVEYANCE OF REALTY. [§§ 648 1 — 6485 

the making of the sale. The deed is not conclusive evidence of anything but 
the facts recited therein. Hence, every fact necessary to constitute a valid sale, 
not recited in the deed, must be otherwise shown, or no title will be conferred 
by the deed," 60 Ind. 47S ; approved in 86 Ind. p. 85. 

5. Adverse .possession does not render the deed void, 7 Ind. 232; 14 Ind. 
242; 60 Ind. 'I'tS. See 62 Ind. 236. 

6. The deed vests a title in fee-simple in the grantee, if the sale is valid; 
even though the owner had only an equitable title in the land, 14 Ind. 242. 

7. The recitals that certain facts appear from the records of the auditor's 
office is not equivalent to the recital that they exist, 23 Ind. 46. 

8. To make a valid title under a tax-deed that is invalid, txventy years pos- 
sessioft adverse to the owner is essential, 60 Ind. 478; 75 Ind. 88 (co-tenant). 

9. One co-tenajtt can not obtain a valid tax-deed of the property held in 
tenancy. If he purchase the land at tax sale, or the certificate after the sale is 
made is assigned to him, it amounts to a payment of the taxes or a redemption 
of the land, 75 Ind. 88. See § 6452, 7iote. 

10. A deed prematurely issued does not change the rights of the parties, 
104 Ind. 75. 

Sec. 6481. Form may vary. 207. In case circumstances should 
exist requiring any variation from the foregoing form, in the 
recitaUpart thereof, the necessary change shall be made by the 
county auditor executing such deed; and the same shall not be 
vitiated by any such change, provided the substance be retained. 
(212.) 

Sec. 6482. Auditor's fees. 208. The county auditor shall be- 
entitled to receive for each tax-certificate fifty cents, and for each 
tax-deed one dollar, which shall include the acknowledgment ; and 
i«n case two or more deeds be made to the same person, the auditor 
shall be entitled to demand and receive from each person seventy- 
five cents for the first deed and fifty cents for each additional one. 
(213.) 

Sec. 6483. Deeds under former laws. 209. The county auditors 
are hereby authorized to make deeds for lands in their respective 
counties, sold for taxes under any former law, where the same 
remains yet to be done ; and the deeds so made shall be [as] good 
and valid as if made by the person authorized under any former 
law to make them. (214.) 

Sec. 6484. Certificates, when canceled — Lost certificates. 210. 
When conveyances are delivered for :ands sold for taxes, the 
certificates therefor shall be canceled and filed^awayby the auditor. 
And in case of the loss of any certificate, on being fully satisfied 
thereof hy due proof, or upon the production of a certified copy 
thereof, the auditor may execute and deliver the proper convey- 
ance, and file such proof [or copy] in his office. (215.) 

Sec. 6485. Register of sales. 211. A .register shall be kept by 
the county auditor in his office, containing a brief description 
of the lands by him conveyed on sales for taxes, the namejs] oi 
the person[s] charged therewith, the date[s] of the sale[s 

55 



th 



le 



§ 6486] TAXATION. [866 

name[s] of the purchaser[s], the amount for which it sold, the 
name[s] of the grantee[s] in the deed[s], and the date[s] of [their] 
its execution. (216.) 

Sec. 6486. Proceedings when sale invalid. 212. Whenever the 
county auditor shall discover, prior to the conveyance of any lands 
sold for taxes, that the sale was, for any cause whatever, invalid, 
he shall not convey such lands ; but the purchase-money and the 
interest thereon shall be refunded out of the county treasury to the 
purchaser, his representatives or assigns, on the order of the 
county auditor; and such land, if originally liable to taxation, 
being still delinquent, shall again be placed on the delinquent 
list, and the amount so refunded, with interest, be collected as in 
other cases. (217.) 

1. A decree setting aside a tax sale renders the county liable for the amount 
paid by the purchaser, unless he has received the amount from the owner of the 
land, 64 Ind. 360. When a decree is entered, setting aside an illegal sale, the 
land should not be deemed free of the lien, if the taxes are jet unpaid, but it 
must again be placed on the delinquent list, 64 Ind. 360. Formerly the action to 
set aside or enforce a tax sale had to be brought within five years, 81 Ind. 491 ; 
93 Ind. 256. 

2. The purchaser at a city or town sale assumes all risk, and if he fails to 
acquire title or a lien, the city or town is not liable to refund the purchase-money, 
except in the exact instances provided by statute, 84 Ind. 467 ; 98 Ind. 182 ; 
29 Ind. 486 ; 107 Ind. 494 ; no Ind. 174; 121 Ind. 180 ; but if it is shown that 
the land was not liable to taxation, or that the taxes had been paid before sale, 
such city or town, or even a county (if the sale is by the county), must refund 
the money paid, with interest, 98 Ind. 182 ; loi Ind. 150. If the description is 
so insufficient that no lien can be enforced the money paid must be refunded, 
no Ind. 174; 118 Ind. 323; 123 Ind. 394. 

3. T\\Q. judgment of a court refusing to enforce a tax lien does not conclude 
a city, town or county making the sale; and, therefore, the mere rendition of 
such judgment does not render it liable to refund the purchase-money, 98 Ind. 
182. In fact, such a judgment is not entitled to go in evidence. See 107 Ind. 
494. But if the owner of the land, in one action enjoins the city or county 
treasurer from issuing a deed, and it is decreed that the purchaser acquired no 
lien, the judgment is conclusive against such city or count}', in an action to com- 
pel a refunding, 118 Ind. 323. 

4. A complaint to recover back money paid at a tax-sale on the ground that 
the land sold was exempt as an institution of learning must show that at the 
time the taxes were levied the property was so used, 29 Ind. 486. So a complaint 
must show that the plaintiff acquired no lien on the land sold, 107 Ind. 494; 
no Ind. 174; 118 Ind. 323. See § 6487^2. 

5. If annexation proceedings are void, a city or town may be compelled to 
refund all money received at tax sales of land or lots within such annexed terri- 
tory, loi Ind. 150. 

6. If the purchaser can enforce a lien, the countj^ city or town is not liable 
to refund the money paid with interest ; it is only liable to refund when the sale 
is so void that it will not even convey a lien, 108 Ind. 174; 121 Ind. 180; 123 
Ind. 394. The fact that the owner had personal property will not entitle the 
purchaser to have his money refunded, 108 Ind. 174. 

7. Nor is the purchaser entitled to any relief from the mere fact that his 
lien has been reduced at the suit of the land-owner, 107 Ind. 494. 

8. The remedy of the purchaser is wholly statutory, and unless he can bring 
his complaint within some provision of the statute it will be bad, 107 Ind. 494; 

no Ind. 174. 



SOy] CONVEYANCE OF REALTY, [§§ 6487, 6487^ 

9. The tes^ is that if the sale is such as it will not enable the purchaser to 
secure a lien, thus being void, he is entitled to relief, but if it is simply inef- 
fectual to convey a title, he is not so entitled, no Ind.,174. See § 6487a, notes. 

10. Probably mandate lies, in a proper case, to compel a refunding, no Ind. 
184. See, however, § 6487a, note i. 

Sec. 6487. When sale is invalid. 213. No sale or conveyance of 
land for taxes shall be valid if, at the time of being listed, such 
land shall not have been liable to taxation, or, if liable, the taxes 
thereon shall have been paid before sale, or if the description is so 
imperfect as to fail to describe the land or lot with reasonable cer- 
tainty; and, in all such cases, the money paid by the purchaser at 
such void sale shall be refunded, with interest, out of the county 
treasury, upon warrant order of the county auditor. (218.) 

1. Sales made under the laxv of 1872 are governed by this section, 118 Ind. 
323- 

2, The description must be so indefinite as to fail to carry a lien, to author- 
ize a refunding, 123 Ind. 394; 124 Ind. 254; but a judgment against a city 
adjudging a refunding is binding, whether there was an invalid description or 
not, 118 Ind. 322. See § 6486, jiotes. 

[1853, p. 131. Approved March 2, 1853, and in force July 24, 1853.] 

Sec. 6487(2. Refunding- taxes, i. In all cases where any person 
or persons or body politic or corporate shall appear before the 
board of commissioners of any county in this State, and establish, 
by proper proof, that such person or body politic or corporate has 
paid any amount of taxes which were wrongfully assessed against 
such person or body politic or corporate in such county, it shall be 
the duty of said board to order the amount, so proved to have 
been paid, to be refunded to said payer from the county treasury, 
so far as the same was assessed and paid for county taxes. [R. S. 
i88i,§58i3.] 

1. The action of the board under this section is judicial 2Ci\^ not ministerial; 
and if the commissioners refuse to refund the illegal tax the remedy is by ap- 
peal and not by mandate^ 63 Ind. 497. See, however, ^ 6486, note 10. 

2. The taxes refunded must have been " wrongfully assessed," 91 Ind. 52S ; 
95 Ind. 182. Merely showing that the tax was irregularly assessed is not enough; 
it must be shown it was unjustly assessed and levied, 100 Ind. 570. 

3. Formal and elaborate pleadings are not required; the presentation of the 
claim and its establishment by proof that they were wrongfully assessed is suffi- 
cient, 91 Ind. 528. The claim in the form of an account is sufficient, 92 Ind. 229; 
98 Ind. 279. But facts must be shown that show ^riina facie that he is entitled 
to relief, 100 Ind. 570. 

4. Illegal taxes that have been voluntarily paid may be recovered back ; 
but in such a case it must appear not merely that the assessment was irregular, 
but also that the taxes were neither justly nor equitably due, 91 Ind. 528; 98 
Ind. 279. Thus if property be not listed, with a view to defraud the revenue, and 
is afterwards illegally listed and assessed, and the taxes thereon charged volun- 
tarily paid, the statute does not authorize a refunding thereof, the assessment 
in such an instance not being wrongful in the sense of the statute, 91 Ind. 52S. 

5. It is not enough to authorize a refunding that the assessment was made 
by the ivrong officer^ 98 Ind. 279. 

6. One who consents that his assessment may be increased by the treasurer 
by the addition of personal property notlisted, can not, after paying such addi- 



§g 6487^—6488] TAXATION. [S6S 

tional tax, claim to have it refunded, upon the ground that the property should 
have been listed against a pledgee, who held it in possession, 98 Ind. 279. 

7. Taxes assessed and paid upon omitted property for past years, where no 
law authorized the listing of omitted property except for the current year, could 
not be recovered back, 100 Ind. 570. But if the valuation of property has been 
unlawfully increased^ the extra taxes thus created must be refunded, 117 Ind. 
410. 

8. This section does not applv to a purchaser at a tax sale where his lien 
has failed, 107 Ind. 494. See >) 64S7, 

Sec. 6487(^. State's portion. 2. In all cases where a portion of 
the amount so wrongfully assessed and paid shall have been for 
state^purposes, and shall have been paid into the state treasury, it 
shall be the .duty of the said board of commissioners to certify to 
the auditor of state the amount so proven to have been wrongfully 
paid, under the seal of said board of commissioners ; and the audi- 
tor of state shall, thereupon, audit the same as a claim against the 
treasury, and the treasurer of state shall pay the same out of any 
moneys not otherwise appropriated. [R. S. 188 1, § 5814.] 

The court will presume that the excess of taxes caused bv the illegal increase 
of valuation by the state board of equalization in 1869 was refunded as required 
by the act of March 8, 1S73. In such a case it was the duty of the countv 
board to refund the illegal tax collected to the tax-payer, 92 Ind. 229; 50 Ind, 
436; see 36 Ind. 175. 

Sec. 6487(:. Appeal. 3. If any board of county commissioners 
refuse to hear the proofs offered by any person or body politic or 
corporate, cornplaining or offering to complain before them, that 
he or it has been wrongfully assessed, the person or body politic 
or corporate so offering to complain shall have the same right of 
appeal from the decision of said board, so refusing to hear such 
complaint, that he or it would have in other cases. [R. S. 1881, 
§ 5815-] 

1. The board's action is judicial, and the remedy upon refusal to refund is 
bv appeal and not mandate, 63 Ind. 497. But see § 6487, note 10. 

2. An appeal lies, also, under the general law, from a refusal to re-pav, 20 
Ind. 178. 

[1891 S., p. 199. Approved and in force March 6, 1891.] 

Sec. 6488. Lien of State, when transferred. 214. If any convey- 
ance for taxes shall prove to be invalid and ineffectual to convey 
title because the description is insufficient, or for any other cause 
than the first two enumerated in the preceding section, the lien 
which the State has on such lands shall be transferred to and vested 
in the grantee, his heirs and assigns, who shall be entitled to 
recover from the owner of such land the amount of taxes, interest, 
and penalty legally due thereon at the time of sale, with interest, 
together with the amount of all subsequent taxes paid, with inter- 
est; and such lands shall be bound for the payment thereof. 
(219.) 

See § 6497. If the sale is ineffectual to carrv the title, but carries to the 
purchaser tlie lien of the State, the delinquent tax-paver can redeem from such 
sale only under the provisions of § 6466, 124 Ind. 254". 



S6g] UNSOLD REALTY. [§§6489 — 649 1 

Sec. 6489. Name of owner immaterial. 215. The sale of lands for 
taxes shall not be invalid on account of such lands having been 
listed or charged on the 'duplicate in any other name than that of 
the rightful owner. (220.) 

The fact that land was sold in the name of a stranger is no objection to the 
validity of the sale, 94 Ind. 201; 71 Ind. 244; 16 Ind. 506. Sale for taxes owed 
by a foVmer owner does not vitiate it, 94 Ind. 201; 102 Ind. 385 ; 49 Ind. 272; 71 
Ind. 2S0; 94 Ind. 201 ; 99 Ind. 352; 104 Ind. 75; 114 Ind. 273, 325. 

Sec. 6490. Proceedings when purchaser dies. 216. In all cases of 
sale of lands for taxes, if the purchaser or his assigns shall die 
before a deed shall be executed on such sale, the deed may be 
executed by the auditor to and in the name of the deceased 
person (if such deceased person, being still alive, would be entitled 
to a deed), or to his heirs-at-law or devisees; which deed shall vest 
the title in the heirs or devisees of such deceased person immedi- 
ately previous to his death (or the executor or administrator may 
assign the certificate of purchase, and the deed may issue to the 
assignee thereof), and in hke cases which have heretofore occurred, 
the same rule shall apply, and all deeds heretofore issued in the 
name of any deceased person who if living at the time of the exe- 
cution thereof would have been entitled thereto, shall have like 
effect as above provided. (221.) 

The remedy given under § 6497 to enforce a lien belongs to the heirs and 
not to the personal representatives of the deceased, 84 Ind. 160. 



ARTICLE 26— COLLECTION FROM UNSOLD REALTY. 

SEC. SEC. 

6491. List to prosecutor — Suit. 6492. Proceedings — Decree — Prosecutor's 

6491a. Advertisement and sale of lots for fee. 

cash, etc.— Cities. 6493. Evidence. 

6494. When several jiarcels, only one suit. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6491. List to prosecutor — Suit. 217. The county auditor 
shall make a list each year, before the thirty-first day of December, 
of all the lands, town and city lots, which have been offered for 
sale for three years successively, after the passage of this act, and 
which have remained unsold for want of bidders, and in said list 
he shall describe the name of the person to whom said lands or 
lots are taxed, if known or if unknown, as they appear on the 
duplicate, and the aggregate amount of the taxes, penalty, interest, 
and costs due thereon, and a description of the. lands or lots upon 
which the taxes are assessed, and such description shall be suffi- 
cient, if made in the manner that lands may be assessed for taxa- 
tion under this act ; and the auditor, if he finds the description on 
the tax duplicate or delinquent list imperfect, shall correct and 
perfect the same, and he may amend such description at any time, 
which list he shall certify, under his hand and seal of office, to be 



§ 6492] TAXATION. [870 



a true and correct list of such unsold lands, and he shall deliver 
the same to the prosecuting attorney, with an order to him to pro- 
ceed to enforce the lien of the State of Indiana for such taxes, 
penalty, interest, and costs upon such lands or lots. Such prose- 
cuting attorney shall also procure from the treasurer of any city or 
incorporated town within the limits of which such real estate is 
situate, a statement of the aggregate amount of the municipal 
taxes, penalty, interest, and costs due thereon. Before such prose- 
cuting attorney shall proceed to enforce such lien, he shall ascertain 
if the same can be done, the name and residence of the owner of 
such lands or lots, and he shall proceed to bring suit in the circuit 
court of the county, in the name of the State of Indiana, on the 
relation of the prosecuting attorney, against such owner, making 
parties thereto all persons who claim to have an interest in said 
lands and lots, or Avho appear by the pubhc records of the county 
to have judgment liens, mortgage liens, or other liens of record, 
upon said lands or lots ; and also the city or town in which said 
real estate is situate, and requiring them to assert such liens or 
claims in said suit. The city attorney or attorney of such town, 
shall appear for the city or town in such case and assert its claim, 
and in so doing he shall be allowed a docket fee of five dollars, 
which shall be taxed as costs. The process shall be issued and 
served and publication, made, and all the proceedings conducted in 
the same manner as ordinary civil suits to foreclose mortgages are 
conducted, and the judgment obtained upon the lien for such 
taxes, penalty, interest, costs, and charges, shall have priority over 
all other liens upon such lands or lots, and next in order of 
priority shall be the judgment obtained for the taxes, penalty, 
interest, and costs due for municipal purposes to the city or town 
in which such real estate is situated, and such liens shall in nowise 
be affected or destroyed by any sale or conveyance of such lands 
or lots, or by any misnomer on the tax books or assessment books 
of the owner of said lands or lots. (222.) 

1. Practice under early statute, 4 B. 258; 5 B. 65; 6 B. 25, 36. The action 
must be commenced in the county where the land is situated, 106 Ind. p. 161. 

2. If the land does not bring enough to pay the taxes and the costs of the 
officers, the latter can not claim their fees from the count}', 124 Ind. 467. 

Sec. 6492. Proceedings — Decree — Prosecutor's fee. 218. The de- 
cree in such suit shall provide that the property shall be sold by 
the sheriff as other lands are sold on execution, at the court-house 
door of the proper county, to the highest bidder for cash, by the 
sheriff of the county. And the judgment as to the lien for taxes, 
penalty, interest, and costs shall be without any relief from valua- 
tion or appraisement laws, and without stay of execution. And 
the first proceeds of such sale, after the payment of costs of suit, 
shall be applied to the extinguishment, pro tanto, of the judgment 
for taxes, penalty, interest, and costs, and paid into the county 



S/l] TAX-TITLES. [§§6493 6495 

treasurer's office, and the residue shall be apportioned in such 
manner as the court may direct, according to the rights of the 
parties ; but in cases where there are no Hen-claimants o^ conflict- 
ing claims of ownership, the court shall direct that the surplus, 
if any, shall be paid into the treasurer's office, for the use of the 
owners of such lands or lots. A docket fee of ten dollars for the 
prosecuting attorney shall, in each case of foreclosure of a tax lien, 
be entered and charged as costs on the judgment against such 
lands or lots, when such judgment is obtained, and collected as 
other costs. (223.) 

Sec. 6493. Evidence. 219. In such suits and in all other suits, 
and for any purpose of evidence or authentication, the records 
made by the county auditors respecting delinquent lands, the 
manner of advertisement of sales thereof, the sales made of the 
same, and the conveyances thereof executed, and all copies of such 
records, or of any other papers required by this act to be made out, 
duly certified to be such by the proper county auditor under his 
seal of office, shall be received ^.-Ey prima facie evidence of the facts 
contained therein. (224.) 

Sec. 6494. Wlieii several parcels, only one suit. 220. Where there 
are several parcels of land or lots belonging to the same person, 
and which have been offered for sale for non-payment of taxes for 
three years successively, and have remained unsold for lack of 
bidders, all of such lands and lots shall be included in one suit. 
(225.) 

ARTICLE 27~TAX-TITLES. 

SEC. SEC. 

6495. Proof required to defeat title. 6498. Tax not invalid for Avant of form. 

6496. Suits to quiet title. 6499. "When county officers are liable for 

6497. Lien, \vhen transferred to grantee. neglect, 

[1891 S., p. 199. Approved and in force March 16, 1S91.] 

Sec. 6495. Proof required to defeat title, 221. In all suits and 
controversies involving the title to land claimed and held by virtue 
of the deed executed by the county auditor. for non-payment of 
taxes thereon, under this or any former tax law, the person claim- 
ing by adverse title to such deed shall be required to prove, in 
order to defeat the title conveyed by such deed, either that the 
land described therein was not subject to taxation at the date of 
assessment of the tax for which it was sold ; or that the taxes, for 
the non-payment of which the land was sold, wxre paid to the 
proper officer within the time limited by law therefor ; or that the 
same had not been assessed for the taxes for the non-payment of 
which it was sold; or that the same had been redeemed pursuant 
to law ; or that a certificate in proper form had been given by the 
proper officer, within the time limited by law for paying taxes or 



§ 6495] TAXATION. [872 

for redeeming from sales made for the non-payment thereof, stat- 
ing [that] no taxes were due at the time such sale was made, or 
that the lands were not subject to taxation. (226.) 

1. Notwithstanding the exceeding strong provisions of this section it has 
been held that a sale of land without a demand having first been made upon 
the owner for personal property is void. Such was the rule before this section 
became a part of the law of this State, and the courts seem unable to extricate 
themselves from the toils in which that rule has involved them. It seems clear 
that the legislature intended that all tax sales should stand, unless they were 
rendered void by one of the facts enumerated in this section. This is clear, 
from the fact that this section requires that in all suits and controversies 
involving the title to land acquired by a tax-deed the title shall stand unless the 
adverse claimant prove " either that the land described therein was not subject 
to taxation at the date of the assessment of the tax for which it was sold ; or 
that the taxes, for the non-payment of which the land was sold, were paid to 
the proper officer within the time limited by law therefor ; or that the same had 
been redeemed pursuant to law ; or that a certificate in proper form had been 
given by the proper officer, within the time limited by law for paying taxes or 
for redeeming from sales made for the non-payment thereof, stating that no 
taxes were due at the time such sale was made, or that the lands were not sub- 
ject to taxation." This is an express enumeration of instances in which tax 
titles shall be held void, and, in accordance with the meix.ixn,'-'- Eizumeratio 
en ills est exclusio alter {us ^^'' it excludes all other instances. Of course, if an 
assessment or levy is not shown, there is nothing to show that the land was sub- 
ject to taxation; but to say that the mere ownership of personal property subject 
to levy and sale for taxes shall avoid the sale, is to add on another cause, not 
enumerated in the statute, for the holding a tax sale invalid. This maxim 
translated is: "The special mention of one thing implies the exclusion of 
another; or, the special mention of one thing operates to the exclusion of any- 
thing different from that expressed." Trayner(3 ed.) on Maxims, 1S2; Broom's 
Maxims, 651 ; Wharton's Maxims, 87. Yet the supreme court, in an earlj^ case, 
which has been followed up to the present day, said: -'A tax sale is good for 
nothing where real estate is sold for taxes when the owner has personal prop- 
erty subject to sale, in the county, which is not sought for by the officer," 17 
Ind. 213; 32 Ind. 379; 64 Ind. 360; 85 Ind. 481. 

2. Before a tax-deed can be introduced in evidence, it must be shotvn by 
proof that the owner of the land had 710 personal property in the county sub- 
ject to levy and sale for the delinquent taxes, 25 Ind. 134; 57 Ind. 276; 28 Ind. 
347; 25 Ind. 134; 14 Ind. 465; 75 Ind. 88; 74 Ind. 575; Si Ind. 208; 85 Ind. 481; 
but such is not the case where the action is simply to foreclose the tax lien, 108 
Ind. 97. 

3. But anyone who seeks to avoid the tax-deed by reason of personal prop- 
erty must show that it was in the county and subject to levy and sale before 
the sale of the land took place, or his plea, to avoid the sale, will be bad, 7 Ind. 
565- 

4. Several cases seem to hold that a recital in a tax-deed that the owner of 
the real estate had no personal propertj' subject to sale may be shown by a 
recital in the deed, 28 Ind. 347 ; 86 Ind. 81 ; 25 Ind. 134; 75 Ind. 88; 74 Ind. 575; 
but now under 91 Ind. 515, a recital of that fact is foreign to the deed and of no 
value whatever as evidence. Yet see 96 Ind. 291. 

5. But in an action to set aside a tax sale, for the reason that the owner had 
plenty of personal property at the time of the sale of the land, subject to levy 
and sale, it must be alleged and proved that the amount due upon the land was 
paid or tendered before the action was brought, 64 Ind. 360; 25 Ind. 281. The 
issuance of a deed can not be enjoined merely because there was personal prop- 
erty at the time of the sale, iii Ind. 467 ; or that there was a double assessment, 
121 Ind. 416. 

6. "While personal property is the primary fund out of which taxes are to 
be paid, still the treasurer is not, at least as against the tax-payer, bound to 
resort to extraordinary means or diligence to find personal property to sell in 



873] TAX-TITLES. [§ 6495 

discharge of taxes which are a specific lien upon the land which he actual! j 
sells." Therefore it was held that in an action by the owner against the county 
treasurer for selling the plaintiff's land, alleging that at the time he had plenty 
of personal property within the county sufficient to make the taxes, of which 
the defendant was informed by the plaintiff, the character of such personal 
property, that it was subject to seizure and sale, and that it was shown to the 
officer, must be alleged or the complaint will be bad on a demurrer for want of 
facts, 83 Ind. 293. 

7. One fe?ia?it can not purchase the property at tax sale owned by him and 
his co-tenant, and procure a good title thereto. His purchase inures to the 
benefit of them both, 75 Ind. 88; 94 Ind. 14. But this does not apply where, 
prior to the sale, the co-tenant conveys his interest to the purchaser, 119 Ind, 
421. 

8. One who takes a mortgage on a tract of land whij^h has been previously 
sold for taxes assessed upon it and another tract owned by the same person, is 
not entitled, in an action by the purchaser to enforce his lien, to have the mort- 
gaged land relieved from the liett of the taxes assessed upon such other tract,, 
and to iiave it confined to the latter, 109 Ind. 199. 

9. A sale of land for taxes where the taxes are owed by d^ former ozvner of 
the land may be eiijoined by the present owner on the ground that the former 
ovvner still has plenty of personal property out of which the taxes can be made, 
95 Ind. 156. 

10. In proving title by tax sale it is said that '"'■Every substantial requisite 
of the law must be complied with, ^o presumptio7i can be raised in behalf of 
the collector to cure any radical defect in his proceedings; and the proof of 
regvilarity devolves upon the person who claims under the collector's sale." 
Consequently it was held that the one claiming under a tax-deed must show 
that every essential step was taken to fasten not only a legal tax upon the land, 
but to make the sale legal, 2 B. 421; 23 Ind. 32; 25 Ind. 134; 28 Ind. 479. The 
claimant must show that the land sold had been legally assessed, 5 B.98; but 
not a lcz\v, 94 Ind. 201 [contra, 5 B. 98 ; 8 B. 336; 11 Ind. 2) ; the advertisement, 
4 B. 70; the delivery of the tax duplicate to the treasurer, and, in case of a city 
or town, that it was accompanied by a warrant, 4 B. 494. 

11. " Each and every step, ixom the listing of the land for taxation to the con- 
summation of the title by delivery of a deed to the purchaser, is a separate and 
independent fact. All these facts, from the beginning to the end of the pro- 
ceeding, must exist; and if anj^ material link in the chain of title be wanting, 
the whole falls for want of sufficient authority to support it." The person claim- 
ing through these proceedings has the burde?! of shov/ing that such steps were 
taken, 23 Ind. 32, 433; 6 B. 36; 11 Ind. 2 ; 91 Ind. 515 ; 25 Ind. 134; 60 Ind. 478; 
86 Ind. 81 ; 25 Ind. 134; 28 Ind. 347. It must be shown that " the land was lia- 
ble for ail the taxes for which it was sold," 8 B. 581; 37 Ind. p. 256; 3 Ind. 528; 
71 Ind. 28^; 85 Ind. 449; 91 Ind. 515; 121 Ind. 164. The only exception made 
as to these general statements is that the holder need not show a levy nor the 
proceedings of the board of equalization, 94 Ind. 291. 

12. If the lazv under which the sale is made has been repealed the sale is void, 
8 B. 581, unless there is a saving clause, 16 Ind. 506; 76 Ind. p. 135 ; 77 Ind. 
316; 6 Clarke (la.) 5; 11 Texas, 311. But an express saving clause is not 
required, if the intention to preserve and continue rights acquired is clearly 
apparent. Thus a re-enactment of a tax law, word for word, or substantially 
so, will preserve all rights acquired under it before its re-enactment, 77 Ind. 316. 

13. In a complaint to quiet title, based upon a tax-deed, a general averment 
that the plaintiff is seized in fee-simple, and that the defendant is making an 
unfounded claim to the land, is sufficient; but if, after making these averments, 
the complainant then proceeds to set forth the fact that his title is derived 
through a tax-deed, it Avill be bad if the allegation is that he ' claims title by a 
tax-deed and sale by the county auditor of P. [where the lands are], which 
deed is duly recorded," etc. He, in such an instance, must show "that every 
provision of the statute under which the sale was made has been complied 
with," 86 Ind. 81. See § 6459, jiote. 

14. Adverse possession does not render a tax sale and deed, for that reason, 
void, 7 Ind. 232. See 62 Ind. 236. 



§ 6496] TAXATION. [874 

15. Sale of land for taxes owed by a former owner does not vitiate such 
sale, 94 Ind. 201. 

16. One who conveys land with a general zvarrajttyis estopped from claim- 
ing title by virtue of a tax sale, if any part of the taxes for which it was sold 
were upon "it at the time of his conveyance, although the sale took place after 
the conveyance was executed, 94 Ind. 201. See 121 Ind. 416, in case of a re-con- 
veyance. 

17. A city, town or county selling land or property for taxes does jiot -war- 
rant the title, or that the sale is valid, 84 Ind. 467 ; 98 Ind. 182. 

1 8. The person in possession under a void tax-deed is not liable to a person 
who has no interest in the land for the rents and profits he maj^ have received 
from the land described in the deed, 109 Ind. 199. Nor to the owner, if not in 
possession of the land, unless he has actually received such rents, 85 Ind. 481. 

19. The provision which makes the deed frima facie evidence of the facts 
therein recited is in derogatory of the common law, and must he strictly con- 
strued, 23 Ind. 32. 

Sec. 6496. Suits to quiet title. 222. Any person holding any 
deed of lands or lots executed by the county auditor for non-pay- 
ment of taxes may commence a suit in the circuit court of the 
county where such lands lie, to quiet his title thereto, without tak- 
ing possession of such lands ; and all parties who have or claim to 
have or appear of record in any of the public offices of the county 
where such land or lot is situated, to have any interest in or lien 
upon such lands or lots, shall be made defendants in such suit. 
And no outstanding unrecorded deed, mortgage, or claim shall be 
of any effect as against the title or right of the complainant as fixed 
and declared by the decree made in such cause. The courts shall 
cause the facts to appear of record, and if, upon the hearing of such 
cause, it shall appear that the complainant's title was or is invalid 
for any cause, such suit shall not be dismissed by the court ; but 
the court, in cases where the tax was due and unpaid, or where the 
complainant's title was invalid for defect or uncertainty of descrip- 
tion, shall ascertain the amount due [to] the complainant for prin- 
cipal and interest [said interest] to be computed at twenty per 
cent, per annum, and shall decree the payment thereof within a 
reasonable time by the owner of such land ; and in default thereof, 
shall direct that such land or lot be sold therefor, and that the 
equity and right of redemption of all defendants in such suit, and 
all persons claiming under them, shall be forever foreclosed : Pro- 
vided, That [the] proceedings in such cases shall be conducted in 
the same manner, as near as may be, in conformity with the prac- 
tice in the case of foreclosure of mortgages. (227.) 

1. If the land lies in Marion county, the suit may be brought in the superior 
court of that county, 119 Ind. 421 ; or in a proper case in the United States court, 
26 N. E. Rep. 153. 

2. An action need not be brought specifically to enforce the statutory lien; 
such lien may be enforced although the complaint is simply to quiet title, 85 
Ind 481; 93 Ind. 256; 84 Ind. 342; 109 Ind. 199; 57 Ind. 276; 121 Ind. 180. If 
the pleader undertakes to state the particulars of the tax title he must state all 
of them or the complaint will be bad as a complaint to quiet title ; yet it will be 
good as a complaint 10 enforce his tax lien, 96 Ind. 291. He need not allege, 
in the latter instance, that the lands were assessed, 75 Ind. 244; 81 Ind. 294. But 



8/5] TAX-TITLES. [§ 6497 

a complaint that the plaintiff is the owner in fee-simple by virtue of a tax-deed, 
is sufficient, 109 Ind. 199. 

3. If it is alleged that the title failed because of an insufficient description the 
burden is on the plaintiff to show that the tract definitely described in the com- 
plaint was the one that it was intended to sell for taxes^ 84 Ind. 198 ; 84 Ind. 294 ; 
108 Ind. 174. But if the sale is not void for want of description, then the plain- 
tiff need neither allege nor prove that the land was liable to taxation, that it had 
been assessed, that thetaxes were unpaid at the time of the sale, or that there 
had been no redemption from the sale; for in all these matters the burden is on 
the defendant to show the contrary, 104 Ind. 75. 

4. In case the paper title is too imperfect to convey a title, the lien may be 
enforced. See § 6325, notes; 81 Ind. 180, 294. 

5. The holder of the tax lien may proceed against all who have an interest 
in the land Avithout specifying the particular interest of each ; and he is entitled 
to a joint judgment against them, where their separate interests have not been 
put of record before the sale or even before the assessment of the lands, 84 Ind. 
342. 

6. In an action to enforce a tax lien (not to quiet title), so affirmatively ap- 
pearing from the pleading, a nexv trial as of right can not be successfully 
demanded, 105 Ind. 420. 

7. A tax lien is superior to all prior private liens, and Sl Judgment enforcing 
it cuts off all such liens where the holders thereof are made parties to the fore- 
closure, 119 Ind. 421. See also 122 Ind. 99. 

8. One who now purchases at a private sale can not recover back his 
money; for, no law authorizing such a sale, the money is paid voluntarily, for 
which there can be no recovery, no Ind. 208. 

Sec. 6497. Lien, when transferred to grantee. 223. If any convey- 
ance made by the county auditor, pursuant to a sale made for the 
non-payment of taxes, under this or any former tax law, shall 
prove to be invalid and ineffectual to convey title, for any other 
cause than such as are enumerated in the section immediately 
preceding the last section, the lien which the State had on such 
land, for state, county, township, and all lawful purposes, shall 
remain in full force, and shall be transferred by such deed, to the 
grantee, and vested in him, his heirs and assigns, who shall be 
entitled to recover from the owner of such lands the amount of 
such legal taxes, together with all lawful charges, with interest, at 
twenty per cent, per annum, from the date of such sale, and also 
the amount of all subsequent taxes paid, with like interest; and 
such claim shall be a lien upon such lands, and the same shall be 
bound for the payment thereof. And in case judgment [shall] be 
rendered against the person holding the title from the auditor as 
aforesaid, for the recovery of such lands, in an action of ejectment 
or other action, either at law or in equity, the court shall ascertain 
the amount due to the party holding such tax-deed for principal 
and interest, and for all improvements made by him on such lands, 
and shall decree the payment thereof within such reasonable time 
as may be determined by such court, and in default of such payment, 
[this court] shall decree that such lands be sold therefor, or suffi- 
cient thereof to pay the amount of such improvements, principal 
and interest due, to the party having the auditor's deed, his heirs 
and assigns: Provided, That there shall be no right of redemption 



§ 6497] TAXATION. [SyS 

of such property after the date of sale, and that the sale shall be 
without the benefit of appraisement laws, and the sheriff shall, 
upon the receipt of the purchase-money, execute to the purchaser 
a deed in fee-simple. (228.) 

1. See § 6488. This section applies to city and towii sales, and the holder 
of a deed or certificate is entitled to receive the same rate of interest as if his 
lien was acquired under a county sale, 85 Ind. 481. See 124 Ind. 254. 

2. Th.Q gejieral interest lavj of 1879 does not fix the rate of interest in tax 
sales, 85 Ind. 481. 

3. Mere representations bj the vendee of a tax claim to the vendor, that he 
purchases it in the interest of the owner of the land, and thereby secures it at a 
reduction on the sum due, will not, in the absence of an agency or an agree- 
ment that the owner is to have the benefit of the reduction, prevent him from 
enforcing the lien for the full amount due, 104 Ind. 451. 

4. \i \.\\.Q purchaser of the land at tax sale dies, his heirs must enforce the 
lien, 84 Ind. 160; 38 Ind. 492. Only the last holder or vendee of the tax-deed 
can maintain the action, 38 Ind. 492. 

5. If the action is to recover possession of the real estate, a counter claim 
averring a purchase at a tax sale, possession thereof under the tax deed issued, 
the making of valuable improvements, and praying that the title be quieted, 
otherwise that a lien be declared in favor of the pleader for the taxes, interest 
and penalty, is good, 84 Ind. 147. See 71 Ind. 296; 82 Ind. 214. 

6. In order to foreclose his lien, the purchaser need not have taken out a 
deed, 114 Ind. 84 {contra, 77 Ind. 280 ; 88 Ind. 159). 

7. A mere vohmtary payment of taxes will not create a lien, 75 Ind. 17. 
But one holding title under a sherifi^s deed afterwards set aside, paying taxes 
while so holding the title, is not a volunteer, 104 Ind. 167. 

8. There are only three instances in which the sale of land is so void as 
not to convey a lien: (i) Where the lands were not liable for taxation; (2) 
Where the taxes have been paid before the sale; and (3) where the description 
on the tax duplicate is so imperfect as to fail to identify the land, no Ind. 174; 
III Ind. 467 ; 114 Ind. 84. 

9. The fact that the owner of the land had plenty o^ personal property sub- 
ject to levy and sale for the delinquent taxes does not render the sale, so far as 
the lien is concerned, void, or even voidable, 114 Ind. 84; no Ind. 174; in Ind. 
467; 72 la. 273; 81 Ind. 180. 

10. Suit can not be brought by the purchaser or holder of the certificate of 
purchase until two years after the sale has expired ; but if the owner of the 
land bring suit to cancel the certificate or quiet his title, the purchaser or tax- 
lien holder will be protected and allowed the proper rate of penalty and inter- 
est, 104 Ind. 75; 114 Ind. 84; 102 Ind. 385; 99 Ind. 352; 88 Ind. 159. 

11. The lien of the State passes to the purchaser, even though the sale does 
not give the slightest ground for an absolute title, 114 Ind. 84; 81 Ind. 180; 104 
Ind. 451 ; 102 Ind. 330; even in the case of a private sale, 98 Ind. 182; § 6488; 
or sale by a city or town, 124 Ind. 254. 

12. The purchaser may enforce his lien even though the deed is void up07i 
its face, 114 Ind. 84 ; 14 Pae. Rep. 256; 15 Kan. 290; 31 Kan. 139; 32 Kan. 580; 
72 la. 273; 60 Miss. 376; 56 Miss. 718; 58 Miss, 628; 84 Mo. 569; 84 Ind. 147; 
124 Ind. 254. 

13. An action to enforce the lien is barred in fifteen years after the right 
of action accrues. The action accrues and statute begins to run, not from the 
date of the tax-deed, but at the time when the purchaser becomes entitled to his 
deed, and delay in obtaining such deed does not extend the time. All taxes 
subsequently -paid, and the right of action therefor, relate back to the time when 
the purchaser became entitled to the deed, 95 Ind. 144; 87 Ind. 317; 98 Ind. 
334. See 62 Ind. 145; 81 Ind. 491; 93 Ind. 256. The five years limitation under 
the act of 1872 applied only where the suit was to recover possession, 94 Ind. 
573; and not to a suit to quiet title or partition, 121 Ind. 164. It v/as strictly 
construed, 85 Ind. 449. 



8yy~\ ' COUNTY treasurer. § 6498 

14. If the owner of the land seeks to avoid the sale at any time within two 
years thereafter, then he must tender the amount the land sold for, with the 
amount of the penalty then accrued; and if refused, he may bring an action for 
the purpose of setting aside the sale, averring the fact of tender and bringing 
the money into court; but in that event he is not liable for i^iterest under this 
section; he is liable onlv for the amount of the sale and the penalty up to the 
date of bringing the action, 102 Ind. 515. He must allege in his complaint that 
he brings the money into court, 124 Ind. 254; 114 Ind. 84; 26 N. E. Rep. 54. 

15. If the sale took place under the law of 1872, and the action is brought 
two years after the sale, the- rate of ijiterest is twenty per cent, under the act 
of 1S83, 102 Ind. 385; 108 Ind. 97. A purchaser in 1867 and 1871 bringing an 
action since 1S83 to foreclose his lien can recover interest onlj^ at the rate of six 
per cent, per annum, as provided by the statute in force at the date of sale, 100 
Ind. 45. The right to the rate of interest given by the law when the sale was 
made is not a vested right, and may be changed, 60 Ind. 573; 74 Ind. 51. See 
7wte 2. 

16. The comflaint to foreclose the lien should aver that the defendant is 
the ov.'7ier of the land or has some interest therein, 71 Ind. 244; 81 Ind, 294. If 
the complaint show that the defendant owns the land, that it was subject to 
taxation, was listed and sold for taxes, and purchased by the plaintitl or his 
assignor, and the amount paid and when paid, it is sufficient, 81 Ind. 294. A 
person not a party to a foreclosure of a tax lien is not bound thereby, 26 N. E. 
Rep. 153. See note 20. 

17. In an action to quiet title, an answer that the defendant foreclosed the 
land for taxes duly assessed upon it, and claims no other interest therein, is 
sufficient, 82 Ind. 214. 

18. If the sale has been set aside before deed issued, the issuing of a deed 
thereafter will not create a lien, 75 Ind. 17. 

19. On appeal it will be presumed that the court below rendered whatever 
judgment the iacts warranted, unless the contrary expressly appears, 77 Ind. 
221. 

20. Lien'holders must take notice of an assessment for taxes, the lien created 
by it, and the manner of enforcing collection, and they are bound by the pro- 
ceedings, whether made parties or not, and their only remedy is to redeem 
withm a proper time. A sale or a decree of foreclosure of a lien for taxes 
passes the title to the purchaser as against judgment lien -holders. If one per- 
son claims title through a judgment forclosing an ordinary lien, and another 
through a judgment foreclosing a tax lien, the latter will have the superior 
title, 122 Ind. 99. See 7iote 16. 

Sec. 6498. Tax not invalid for want of form. 224. No general or 
specific tax authorized by the laws of this State, and which shall be 
assessed on any property in any township, city, or town within 
this State, by any officer authorized to make assessments, or which, 
if made by another person or may be adopted by such officer as 
his act, shall be held to be illegal or invalid for want of any matter 
of form in any proceeding not affecting the merits of the case, 
and v/hich shall not prejudice the rights of the party assessed. 
And all taxes assessed upon any property in this State shall be 
presumed to be legally assessed until the contrary is affirmatively 
shown; and no sale of real estate for the non-payment of taxes 
thereon shall be rendered invalid by showing that any certificate, 
return, affidavit, or other paper required to be made and filed in 
any office is not found in any office where the same ought to be 
filed or found, but, until the contrary is proven, the presumption 



§§ 6499, 6500] TAXATION. [Sy8 

shall be, in all cases, that such certificate, return, affidavit, or other 
paper was properly made, and filed in the proper office. (229.) 

The fresumft{o7i is that all taxes were legally assessed until the contrary is 
shown. It is presumed that they were placed upon the tax duplicate bj the 
proper officer, 109 Ind. 10. 

Sec. 6499. When county officers are liable for neglect. 225. When- 
ever the owner of any tract, lot, parcel, or piece of lanais deprived 
of his title thereto, or to some portion thereof; or, by reason of 
any suit in relation thereto, is put to expense, damages, costs, or 
charges, by reason of the failure of the county treasurer to give 
proper credit for any taxes paid to him ; or whenever any tract, 
parcel, or lot of land shall have been assessed to two different 
persons, and the entire tax shall have been paid by either of them, 
and the treasurer shall sell such land as delinquent on account 
of the non-payment, by the other party, of the taxes assessed 
against him thereon, the party damaged by such sale, or his legal 
representatives, may, in an action against the officer by whose act 
or omission such damages have been caused, or upon his official 
bond, recover ajudgment for double the amount of all the damages, 
costs, and charges to which Siuch owner may have been subjected 
in consequence of such failure or such derehction of duty. (230.) 

See § 6465. 
ARTICLE 28— TREASURER'S SETTLEMENTS AND DEFAULTS. 

SEC. SEC. 

6500. Settlements with county auditor. 650S. Books and papers admissible testimony. 

6501. Payment to state treasurer. 6509. Duties of sheriff as to collecting. 

6502. Payment to state treasurer. 650913. Dog- fund. 

6503. Penalty for failure to pay. 6510. Reumding by county to treasurer. 

6504. Mistakes, how corrected. 6511, Refunding by State to treasurer. 

6505. Liability for not settling. 6512. Provision applies to all county treas- 

6506. Not paying over. urers. 

6507. Stated account,/r?wa facie evidence. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6500. Settlements with county auditor. 226. The county 
auditor and [county] treasurer shall attend at the office of said 
auditor, on the third Monday in April, annually ; and the treasurer 
shall then and there make a [settlement] with the auditor for the 
amount of taxes for which such treasurer is to stand charged, as 
follows : 

First. The auditor shall, in a column or columns for the pur- 
pose, opposite the name and description, on the right hand of the 
duplicate in the hands of the auditor and treasurer, extend a list 
of all such taxes as the treasurer shall have been unable to collect. 

Second. The treasurer, under oath, to be administered by the 
auditor, shall certify in such duplicate to the correctness of such 
list, setting out in words and in figures the amount thereof. 

Third. The treasurer shall immediately proceed to collect the 
same in the manner provided by law. 



879] treasurer's settlements and defaults. [§§ 6501, 6502 

FouHh, After deducting the amount of taxes so returned delin- 
quent, and the collection fees allowed the treasurer from the sever- 
al taxes charged on the duplicate, in a just and ratable proportion, 
the treasurer shall be held liable for the balance. 

Fifth. The auditor shall certify, in such manner as the auditor 
of state shall direct, the balance due for all state purposes, and the 
balance due for county or other local purposes; which certificate 
he shall deliver to the treasurer, who shall deliver the same to the 
auditor of state at the time he makes settlement with him. 

The said treasurer shall, also, on the first Monday in November, 
make settlement with the county auditor for the amount of all the 
tax[es] and delinquent tax[es] for which said treasurer is to stand 
charged ; said settlement, in all respects, to be made and certified 
in such m.anner as the auditor of state shall direct ; and it shall be 
the duty of the county auditor to forward a certified copy of such 
settlement, forthwith, to the auditor of state. (231.) 

1. City settlements, § 3093; iozuji, § 3322. The county treasAarer annusJly 
settles with the board of county commissioners, R. S. 1881, § 5925. 

2. Referred to and commented upon, 109 Ind. p. 17. A refusal, in a suit on 
the treasurer's bond, to allow certain settlements between him and the county 
auditor to go in eindence is not error, if such settlements could not have changed 
the result, 99 Ind. 218. See 70 Ind. 481. 

3. In this settlement the county board of commissioners have no authority 
whatever to interfere, iii Ind. p. 176. See 93 Ind. 311. 

4. Settlement sheets, signed by the treasurer and auditor, reciting that 
they contain " a true and correct statement of delinquent taxes collected by the 
treasurer " for a length of time, " as reported by the treasurer to the auditor of 
said county, and the amount payable into the state treasury," are admissible in 
evidence in an action on the bond of the treasurer, 62 Ind. 183. 

5. These scttleme7its may be explained by parol evidence as to the manner, 
and under what circumstances, were made, 62 Ind. 183. They are only prima 
facie correct, 93 Ind. 311 (explaining 17 Ind. 437.); even when those made 
under the law of 1872, which declared that they should be conclusive, the act of 
1881 changing their effect in that respect, 85 Ind. 260. See § 6507. 

6. If there has been a mistake, whereby the treasurer is overcharged, he 
can not recover back the excess from the county after six years from the date 
of over-payment, 95 Ind. 323; 82 Ind. 172. 

7. A copy of this settlement certified fro by the county auditor is evidence 
of the facts therein recited, 22 Ind. 241. Note 4. See § 6507. 

Sec. 6501. Payment to state treasurer. 227. Each county treas- 
urer shall, on or before the fifteenth day of May, in each year, pay 
over to the state treasurer all the moneys found due for all state 
purposes, according to the certificate of settlement with the audi- 
tor of his county, and shall take a receipt or receipts for the money 
so paid; which he shall deposit with the auditor of state, who 
shall give him a quietus. (232.) 

Manner of paying, R, S. 1881, § 5637. 

Sec. 6502. Payment to state treasurer. 228. Each county treas- 
urer shall, also, on or before the first day of January of each year, 
pay over, to the state treasurer all the moneys found due for state 



§§ 6$03 6505] TAXATION. [880 

revenue, school tax, and all other state purposes, according to the 
certificate of settlement with the auditor of his county, and shall 
take a proper receipt or receipts from the treasury for the moneys 
so paid ; which he shall deposit with the auditor of state, who shall 
give him a quietus. (233.) * 

Sec. 6503. Penalty for failure to pay. 229. If any county treas- 
urer shall fail to pay into the state treasury the amount due to the 
State on his account for the state and other taxes, before or at the 
time required by this act, he shall forfeit and pay to the State of 
Indiana a penalty of fifteen per cent, on the amount due ; which 
shall, together with the amount due the State, be recovered in an 
action of debt, in the name of the State of Indiana, against such 
dilatory treasurer. And it shall be the imperative duty of the 
auditor of state to notify, at once, the prosecuting attorney of the 
proper county of such default ; and such attorney shall bring suit, 
immediately, against such treasurer; and such penalty, when re- 
covered, shall be paid into the state treasury. For his services in 
collecting such penalty, such prosecuting attorney shall be allowed 
a docket-fee of ten dollars, to be taxed as costs against such 
defaulting officer. In no case shall the prosecuting attorney fail 
to bring such suit, unless satisfactory evidence from the county 
board is presented to him, showing, by official action taken by 
such board, lawful cause why the treasurer could not pay over, in 
part or in whole, the amount due on such treasurer's account with 
the State. (234.) 

A prosecuting attorney who obtains judgment in behalf of a county against 
a defaulting treasurer for public money, is not entitled to a lien upon the judg- 
ment to secure his statutorj' fee, 125 Ind. 219. 

Sec. 6504. Mistakes, how corrected. 230. If any county treas- 
urer, in making settlement with the county auditor, shall stand 
charged, by mistake, with any tax remaining unpaid, and shall not 
receive a credit therefor in such settlement, such treasurer may 
collect such tax, for his own use, at any time after such settle- 
ment, either by distress and sale, as hereinbefore provided, or by 
an action of debt in his own name before any justice of the peace 
or court having jurisdiction. (235.) 

1. A lien can not be declared upon the land for the taxes due under this 
section, for the action is a personal one, 17 Ind. 30S ; 49 id. 285, but see 21 Ind. 
74- 

2. In an action to recover the amount of taxes with which he is charged, 
the treasurer must produce the tax duplicate or a certified copy, to prove that 
the land or property was taxed, 17 Ind. 308 ; 8 B. 350. 

3. If the count}^ treasurer has not been allowed his proper fees, his claim is 
barred after six years, 82 Ind. 172. 

Sec. 6505. Liability for not settling. 23 1. If any county treasurer 
shall refuse or neglect to make return or settlement with the 
auditor of his county, as in this act required, he and his sureties 



88 1] treasurer's settlements and defaults. [§§6506 — 6508 

shall be held liable to pay the full amount of the taxes charged on 
the duplicate, respecting which he so refuses or neglects to make 
return or settlement, together with interest from the time when 
such return or settlement should have been made, and ten per 
centum damages ; and it shall be the duty of the county auditor 
to notify, immediately, the prosecuting attorney of such failure 
or refusal, who shall bring suit, at once, upon such treasurer's 
official bond. (236.) 

Sec. 6506. Not paying over. 232. The county treasurer shall pay 
over all the revenues collected for county, road, and other purposes, 
and make settlements therefor, at the times and in the manner by 
this act required; and upon failure or refusal to do so, he and his 
sureties on his officialbondshallbeheldliabletopay the full amount 
which he [should] shall have paid over, together with interest and 
ten per centum damages. And such suit, if for state revenue, 
shall be brought by the attorney-general, in the name of the State 
of Indiana, on [the] relation of the auditor of state, upon the written 
request of the auditor of state; and if for county, road, or [for] 
any other purpose, it shall be brought by the prosecuing attorney, 
in the name of the State of Indiana, or [on the] relation of the 
county auditor, upon the written request of the county auditor or 
upon the order of the board of county commissioners. And in 
case of recovery upon such bond, such attorney-general or prose- 
cuting attorney shall be entitled to a compensation of five perr 
centum upon all sums collected, after judgment for the full amount,, 
interest, and ten per centum damages has been obtained, and also a. 
docket-fee often dollars, to be taxed as costs against the judgment* 
defendants. (237.) 

1. The prosecuting attorney is entitled to fees from the county only on the 
amount the county receives, 125 Ind. 270. The relator may be the county 
auditor, 81 Ind. 137 ; 85 Ind. 260 ; 49 Ind. 51, 47, 42. R. S. 1881, § 5904. 

2. This section does not apply to an action against a treasurer individually 
where the suit is brought by reason of a mistake on the part of the county 
whereby he had been given credit, on final settlement, for county orders 
which had previously been redeemed, and for which he had been given full 
credit in other settlements, 108 Ind. 449. 

Sec. 6507. Stated account, prima facie evidence. 233. The stated 
account of the county treasurer against whom suit is brought, cer- 
tified by the auditor of state as truly transcribed from the account- 
current against such treasurer on the books of said auditor's office, 
authenticated by the state seal, shall h^ pmna facie evidence against 
such treasurer and his sureties. (238.) 

See § 6500, note 5. 

Sec. 6508. Books and papers admissible testimony. 234. In all 
suits brought against any county treasurer and his sureties, the 
books and papers belonging to the treasurer's office, and all books 
and papers belonging to the auditor's office shall, when proved by 
the oral testimony of the auditor, be admissible testimony. (239.) 
■56 



§§6509 — 65 1 l] TAXATION. [882 

Sec. 6508. Duties of sheriff as to collecting. 235. The sheriff, or 
other officer who shall collect any money from any delinquent 
county treasurer or his sureties, shall, within ten days after the 
assessment and the collection thereof, pay into the county treasury 
such portion thereof as shall belong to the county, and, within 
thirty days after such collection, shall pay into the state treasury 
the portion belonging to the State, retaining the same traveling 
fees allowed by law to county treasurers ; or he shall pay the 
same over in such other manner as the auditor of state may direct. 
(240.) 

Sec. 6509^. Dog fund. 236. The revenue received from the tax 
on dogs in each township shall be set apart by the county auditor 
at such annual settlement, and the same shall be paid over by the 
county treasurer to the proper township trustee. The sums so 
collected and received in each township are hereby declared to be 
a fund for the payment of damages sustained by the owners of 
sheep maimed or killed by dogs within such township ; and each 
township trustee is directed and required to hold the same for such 
purposes: Provided, however, That when it shall so happen on the 
first Monday of March in each year, in any township, that the said 
fund shall accumulate to an amount exceeding fifty dollars over 
and above orders drawn against the same, then the surplus over 
said sum of fifty dollars shall be expended by such trustee for the 
use of the school revenue of the township. 

See § 6329//, notes. Effect of act of 1881 on distribution, see 90 Ind. 495. 

Sec. 6510. Refunding by county to treasurer. 237. Whenever it 
shall appear to the board doing county business in any of the 
counties of this State, by clear and sufficient proof, that, by reason 
of erroneous charges in the tax duplicate, or from any other cause, 
the treasurer of such county has paid and accounted to said board 
for more money than was justly due from him on account of 
county revenue, said board doing county business shall direct the 
auditor to credit said treasurer w^th the sum or sums thus im- 
properly paid, and order the same to be refunded from the county 
treasury. (242.) 

Without a statute authorizing a refunding by the county of illegal taxes 
none can be refunded, 36 Ind. 175. 

Sec. 6511. Refunding by State to treasurer. 238. Whenever simi- 
lar improper or erroneous payments have been made by any 
county treasurer to the state treasurer, the board doing county 
business shall direct the auditor to certify said improper or errone- 
ous payments to the auditor of state, under his seal of office, who 
shall audit and allow the same as a claim against the state treas- 
urer, and the [said] treasurer shall pay the same [out] of any 
moneys not otherwise appropriated. (243.) 

No tax can be refunded except such as is authorized by statute, 36 Ind. 175. 



SS^'] GENERAL PROVISIONS. [§§6512 65 1 5 

In a proper case the auditor of state may be compelled to refund by a mandate, 
53 Ind. 60; 90 Ind. 16. The certificate is prima facie correct, and can not be 
impeached except for fraud in its procurement or issue, or mistake therein, 90 
Ind. 16. 

Sec. 6512. Provision applies to all county treasurers. 239. The 
provisions of the preceding sections shall extend to persons who 
have been, as well as to those who are now and shall hereafter be, 
county treasurers. (244.) 



ARTICLE 29— GENERAL PROVISIONS. 

SEC. SEC. 

6513. Annual review of delinquents. 6520^. Limit of compromise — Cities and 

6514. Delay not to vitiate. towns. 

6515. Forms and instructions, 6521. Former liens and penalties. 

6516. Uncollected tax, how added. 6521a. Cities governed by general tax law — 

6517. Uniform system of book-keeping. Office of city assessor and board of 
651S. Copies of act — Distribution. equalization abolished. 

6519. School land assessments legalized. 6521^. False swearing. 

6520. When treasurer not to refund. 6521c. False assessment. 

6520a. Compromise of taxes. 6^2id. Officer failing to perform his duty. 

6520&. Certificate of compromise. 6521^. Forms. 

6520^. Three vears' delinquency — Com- 6521/'. Laws repealed. 

promise. 6521^. Emergency clause. 
6^2od. Certificate of redemption. 

[1891, p. 199. Approved and in force March 6, 1891.] 

Sec. 6513. Annual review of delinquents. 240. Annually, in the 
month of November, before the delinquencies of a former year or 
years are carried upon the current year's duplicate, it shall be the 
duty of the county auditor and [county] treasurer to review and 
carefully examine the hst of delinquencies ; [and] all such delin- 
quencies as, by reason of removal from the State, leaving no prop- 
erty, or dying, leaving no property, and all delinquencies which, in 
the judgment of said auditor and treasurer, from any other cause, 
there is no reasonable probability of being collected, shall be omit- 
ted from the current year's duplicate. (245.) 

Sec. 6514. Delay not to vitiate. 241. Any failure to deliver the 
treasurer's or assessor's books within the time required by this act, 
or to make any official certificate within the time required by this 
act, shall in no way affect the validity of the assessment and levy 
or collection of taxes; but in case of such failure, the assessment 
and levy of taxes and the proceedings to collect taxes shall be held 
to be as valid and buildings [binding] as if said books Jiad been de- 
livered at or within the time required by law. (246.) 

Sec. 6515. Forms and instructions. 242. It shall be the duty 
of the auditor of state to make out and forward to each county 
auditor, from time to time, for the use of such auditor and other 
officers, suitable forms and instructions ; and all such instructions 
shall be strictly complied with by the officers, in the performance 
of their respective duties. He shall give his opinion and advice. 



§§6516—6519] TAXATION. 

on all questions of doubt, as to the true intent and meaning of the 
provisions of this act. (247.) 

Sec. 6516. Uncollected tax, how added. 243. If the tax on any 
property liable to taxation is prevented from being collected for 
any year or years by reason of any erroneous proceedings or other 
cause, or has not heretofore been assessed, the same shall be as- 
sessed as in this act provided, and the amount of such tax which 
such property should have paid shall be added to the tax on such 
property for the next succeeding year. (248.) 



Sec. 6517. TJniform system of bookkeeping-. 244. It shall be the 
duty of the auditor of state to order and to enforce a correct and, 
as far as practicable, uniform system of bookkeeping by county 
treasurers and auditors, so as to afford a suitable check upon their 
mutual action, and insure the thorough supervision and safety of 
state, county, and other funds. (249.) 

Sec. 6518. Copies of act — Distribution. 245. The auditor of state 
shall, from time to time, whenever he shall find it necessary, cause 
to be printed, at the expense of the State, a sufficient number of 
copies of this act to furnish one copy to each township assessor, 
county assessor, treasurer, auditor, and commissioner within this 
State, and shall transmit to each county auditor a sufficient num- 
ber for his county. Every county auditor receiving such copies 
shall immediately distribute the same to the persons entitled there- 
to. The auditor of state shall also furnish the several township 
assessors, county assessors, auditors and treasurers with all such 
forms and instructions as he may wish them to pursue in the per- 
formance of the duties required by this act. And in preparing 
such forms for the returns to be made by county auditors, and for 
the settlement sheets of county treasurers, he shall require them 
to separately show the amount collected and paid in on account 
of poll-tax. (250.) 

Sec. 6519. School land assessments legalized. 246. In all cases 
where school lands have been sold and a certificate has been issued 
to the purchaser, or entered or recorded in the proper office, or 
otherwise, and the purchaser has entered into possession, and paid 
a part or the whole of the purchase-money, or could have entered 
into occupancy, such lands shall be deemed and held as having 
been sold, so as to make them liable to taxation, within the mean- 
ing of the law, as fully and completely as they would have been 
had a deed been made and delivered, and the fee had passed to 
the purchaser ; and all appraisements of lands so sold, all assess- 
ments of the same for taxes, and all levies and collections of taxes 
thereon, heretofore made, shall be and are hereby legalized and 
declared to be lawful and valid, and shall in nowise be subject to 



885] GENERAL PROVISIONS. [§§ 65 20 — 6520^ 

question by reason of such sale not having been consummated by 
the execution and deUvery of [a] deed. But whenever any treas- 
urer fails to collect any delinquent taxes for any year, and the 
same is carried over to the next year's duplicate, together with all 
penalties and interest, such treasurer shall not be entitled to any 
fee for collecting the delinquent part of said duplicate, more than 
he is entitled to by law for collecting the duplicate of the current 
year. (251.) 

See § 4364. The closing sentence in this section is constitutional, and by 
implication repeals § 592S, R. S. 1881, 84 Ind. 14. Formerly the lands described 
in this section were not taxable, 49 Ind. 272; but now it is, ^^ Ind. 60; 57 Ind. 
96. 

Sec. 6520. When treasurer not to refund. 247. No treasurer shall 
refund any taxes paid ; nor shall any board of county commission- 
ers authorize the refunding or re-payment of any taxes so levied 
or collected ; nor shall any action be commenced or maintained in 
any court in this State; nor shall any court have jurisdiction [to 
entertain any action brought] to recover taxes so levied and col- 
lected, as being illegal, by reason of such lands not being sold in 
any case contemplated in the preceding section. (252.) 

This section took away the right to compel a refunding of taxes on school 
lands paid prior to the conveyance, 58 Ind. 244; 81 Ind. 186. 

Sec. 6520^. Compromise of taxes. 248. Whenever, at any time 
before the first day of April, 1892, it shall appear to the joint satisfac- 
tion of the county auditor and the county treasurer and the county 
assessor, that any tract of land or city, town or village lot hereto- 
fore assessed with state and county taxes, and heretofore unsold for 
taxes, is not worth the amount of such taxes, interest and costs, 
they shall jointly proceed to appraise such tract of land or lot at its 
true cash value, and thereupon it shall be lawful for said auditor, 
treasurer and assessor to compromise said taxes assessed up to the 
first day of April, 1891, with the owner of such tract or lot, for 
such sum in cash, as may seem advantageous to the county and 
State, and such proposed compromise, shall be at once reported by 
the county auditor to the auditor of state, and if approved by him, 
under his hand and seal of office, and not otherwise, the same shall 
be valid and effectual, if the amount thereof is paid to the county 
treasurer before the first day of April, 1892. (253.) 

Sec. 6620/^. Certificate of compromise. 249. As soon as such pay- 
ment is made, a certificate of satisfaction and redemption shall be 
issued by the county treasurer, attested by the signature and seal 
of the county auditor, and delivered to such owner, Avhich certifi- 
cate shall be valid and effectual to release said land or lot from the 
lien of all state and county taxes, penalties and costs due thereon 
up to the first day of April, 189 1, and [the] sum so paid in com- 
promise shall be distributed to the State and county in the propor- 



§6520^ 6521] TAXATION. 



tion that the amount received bears to the whole amount assessed 
and charged against such tract or lot. (254.) 

Sec. 6520^. Three years' delinquency — Compromise. 250. When- 
ever, before April i, 1892, the owner of any tract of land, or city, 
town or village lot, heretofore assessed with state and county taxes, 
and unsold for taxes, which have been continuously delinquent for 
at least three years or more before the taking effect of this act, 
offers to the county treasurer to pay in cash the full amount of such 
taxes, with interest thereon at the rate of six per cent, per annum, 
from the day each installment of tax became due and payable, 
without the penalty, costs and charges thereon, and it appears to 
the joint satisfaction of the county auditor, treasurer and assessor, 
that it will be more advantageous to the county and State [to] accept 
such offer, than to proceed against such lands or lots, they shall 
at once jointly report the offer with their opinion, to the auditor 
of state, and if he notifies the county auditor, under his hand and 
seal of office, that he deems it advantageous to the county and State 
to accept such offer, it shall thereupon be the duty of the county 
treasurer to accept such offer and to receive the amount of such 
taxes and interest without the penalty, costs and charges. (255.) 

Sec. 6520^. Certificate of redemption. 251. As soon as such pay- 
ment is made the certificate of satisfaction and redemption shall be 
issued by the county treasurer, attested by the signature and seal 
of the county auditor, and delivered to such owner, which certifi- 
cate shall be valid and effectual to release said land or lot from 
the lien of all state and county taxes, penalties and costs due 
thereon up to the first day of April, 1891, and such sum so paid 
shall be distributed to the State and county in proportion that the 
amount received bears to the whole amount assessed and charged 
against such tract or lot. (256.) 

Sec. 6520^. Limit of compromise — Cities and towns. 252. The 
privilege to compromise and pay, permitted in the foregoing sec- 
tion, shall not extend beyond the first day of April, 1892, and the 
provisions of said sections shall apply to municipal taxes in cities 
and incorporated towns, and in cities the treasurer, clerk and 
chairman of the finance committee shall perform the same duties 
as are now enjoined in said sections, and the mayor shall perform 
the duties required of auditor of state, and in incorporated towns, 
the board of trustees shall have full power to perform the duties 
in said sections enjoined upon said officers as aforesaid. (257.) 

Sec. 6521. Former liens and penalties. 253. All liens for taxes, 
and all penalties, and any right to redeem from any tax-sales, 
accrued under former laws, and existing at the time of the passage 
of this act, are hereby continued in force, and may be enforced 
under the provisions of this act; and all suits and proceedings 



88/ J GENERAL PROVISIONS. [§§ 6^2ia 6^^210 

now pending for collection of taxes, under former and existing 
laws, shall be continued to a final termination the same as if this 
act had not been passed. (258.) 

1. The repeal of a statute under which taxes are levied puts an end to the 
right to collect them, unless the repealing statute contains a provision preserv- 
ing the taxes and the right to collect them. A lien accrued under the act of 
1872 is continued and preserved, and may be enforced under the provisions of 
that act. The remedy of the holder of an invalid tax title, for the enforee- 
ment of rights acquired under former statutes, is that given by the act of 1872, 
77 Ind. 316; 96 Ind. 291; 109 Ind. 10. 

2. There is now no right of redemption of personal property sold, the 
statute authorizing it having been repealed, 104 Ind. 459. 



Sec. 6521^. Cities governed by general tax law — Office of city 
assessor and board of equalization abolished. 254. Cities shall be 
governed by the provisions of this law, in regard to the matters 
embraced therein, so far as the same are applicable, and the duties 
required by the terms of this act to be done by the county officers, 
shall be performed by the corresponding officers of each city in 
regard to the assessment and collection of taxes, and all matters 
pertaining thereto : Provided, That all city taxes shall be paid on 
or before the third Monday in April of each year, unless the com- 
mon council shall, by ordinance or resolution, determine other- 
wise, as provided by law : And, provided further, That the office 
of city assessor and the city board of equalization are hereby 
abolished and the assessment of real and personal property, as 
made and returned by the township assessor, shall serve as the 
assessment for city purposes, and the proper city officers shall have 
access to the assessor's books and to the tax duplicates in the 
county auditor's office, for the purpose of transcribing therefrom 
a list of the property assessed, as the same shall have been equal- 
ized by the board of review and the state board of tax commission- 
ers. (259.) 

See § 3160. 

Sec. 6521<^. False swearing. 255. Any person who, under any 
of the proceedings required or permitted by this act, shall willfully 
swear falsely, shall be guilty of perjury and subject to all its pen- 
alties. 

Sec. 6521<;. False assessment. 256. Any assessor or member 
of a board of review, or of a board of tax commissioners, who shall 
willfully assess any property at more or less that [than] what he 
believes to be its true cash value, as the same is defined in this 
act, shall be guilty of a misdemeanor, and on conviction thereof 
he shall be punished by a fine not exceeding three hundred dollars, 
or by imprisonment in the county jail not more than one year, or 
both, in the discretion of the court. 



§§ 6521^ — 6521^] TAXATION. 

Sec. 6521^. Officer failing to perform his duty. 257. Any officer 
who shall willfully neglect or refuse to perform any of the duties 
imposed on him by this act, when no other provision is made 
herein, be guilty of a misdemeanor, and on conviction thereof 
shall be punished by imprisonment in the county jail not exceed- 
ing six months, or by fine not exceeding two hundred dollars, or 
both, in the discretion of the court, and shall be Hable to any per- 
son injured thereby to the full extent of the damage sustained. 

Sec. 6521^. Forms. 258. The state board of tax commissioners 
is hereby authorized to prepare for the use of assessors a more 
complete and perfect form of ''schedule of property " than that set 
out in section 53 of this act, with a view of securing a full assess- 
ment of all the property of the State ; and all county auditors are 
directed to use such form, in preparing blanks for the use of asses- 
sors. Said board is also authorized to prepare in like manner a 
new form of tax receipt for the use of county treasurers, which 
form of receipt, when so prepared, shall be used by all county 
treasurers : Provided, That for the assessment and collection of 
taxes for the year 1891, the forms heretofore in use may be con- 
tinued as far as practicable, subject, however, to all provisions of 
this act. 

Sec. 6521/ Laws repealed. 259. All laws and parts of laws 
within the purview of this act, including ' ' an act to render uniform 
the assessments of personal property in the several townships of 
the different counties," approved March 8, 1889, are hereby re- 
pealed. (261.) 

Sec. 6521^. Emergency clause. 260, Inasmuch as an emergency 
exists, this act shall take effect and be in force from and after its 
passage. (262.) 



APPENDIX, 



It has been deemed advisable, owing to the size of this volume, 
to omit several acts of the legislature which have only a local ap- 
plication, and which are enumerated below, viz. : 



An act concerning the incorporation and government of cities having more 
than 100,000 population, approved March 6, 1891 (Acts 1891, pp. 137 to 197). 
This law now applies only to the city of Indianapolis ; and is often referred 
to as the "Charter" of that city. 

II. 

An act providing for a board of metropolitan police and fire department in all 
cities of 50,000 or more and less than 100,000 inhabitants, in force March 
10, 1891 (Acts i89i,p.467). This act now applies only to the city of Evans- 
ville. 

III. 

An act to establish an efficient board of public works in all cities containing 
more than 50,000 and less than 100,000 inhabitants, in force March 10, 1891 
(Acts 1891, p. 474). This act now applies only to the city of Evansville. 

IV. 

An act concerning taxation for city and school purposes in cities containing a 
population of over 70,000 inhabitants, approved February 21, 1885 (Acts 
1885, p. 13 ; El. Sup. §§ 2159 to 2183). This act now applies only to the city 
of Indianapolis. 

V. 

An act to establish a board of public works in all cities of 50,000 inhabitants or 
more, passed March 8, 1889 (Acts 1889, p. 247; El. Sup. §§ 759 to 783). This 
act is unconstitutional. State ex rel. Jameson vs. Denny, iiS Ind. 3S2. 

VI. 

An act providing for a board of metropolitan police and fire departments in all 
cities of 29,000 inhabitants and over, passed March 7, 1SS9 (Acts 1SS9, p. iii\ 
El. Sup. §§ 721 to 737). This act is unconstitutional. State ex rt7. Holt r.f. 

889 



890 



APPENDIX. 



Denny, 118 Ind.449; City of Evansville t'^. State ex rel. Blend, 118 Ind.426 
This left the act of March 5, 1883, in force. (See ante §§ 322ifl° to 3221c; 
Acts 18S3, p. 89; El. Sup. §§ 705 to 720.) State ex rel. Law vs. Blend, 121 
Ind. 514. 

VII. 

The charter of the city of Evansville, approved January 27, 1847 (Local Acts 
1847, p. 3), and all amendments thereto. 



VIII. 



The charter of the town of Vernon, approved January 22, 1851, a public act 
(Local Laws i85i,pp, 3 to 10), and all amendments thereto. 



INDEX. 



INDEX. 



Abandonment sec. 

An office may be abandoned, n. 2. 156 

Abatement 

Plea of abatement necessary 

before mavor "• 5, 3066 

Abutter 

Damages to property by grad- 
ing street n. 22, 66 

Market places can not be im- 
proved at his expense 

cl. 33, n. 4, 3106 

Right to street n. 6, 3161 

Accoucher 

Reports to county board of 

health 4995 

Accounts 

Clerk of city keeps 3069 

Acknowledgments 

Mayor may take 3062 

Action on city ordinance 

Enforcement of ordinance. n. 4, 3066 
Judgment against a railroad. . . 3065 

city 3065 

Name of city brought in. .... . 3066 

Organization of city need not 

aver 3064 

Penalties to recover, how 

brought 3066 

Publication of ordinance need 

not aver 3064 

affidavit denying 3064 

Suit, see. 

Survival of action n. 35, 3161 

Action, survival 

When action survives. . , .n. 35, 3161 

Action on warrant 

Suit may be brought upon a 

city warrant n. 2, 3069 



Additions 

Town vacating. 



;3S3 



Administrators sec. 

City taxing 3-264 

Duty to report decedent's prop- 
erty, see Taxation. 
Town taxing 3264 

Adverse possession 

What constitutes, and effect on 

street cl. 18, n. 8, 3106 

Advertising 

In cities of 16,000 3ioo<^ 

10,000 3100^ 

Notices, see. 

Affidavit 

Denying publication of city 

ordinance 3064 

Election for incorporating town 
as a cit}', showing the re- 
sult ' 3035 

Mayor may certify to 3062 

Non-publication of ordinance . 3064 

Recovery of penalty 3066 

Sufficiency before mayor to re- 
cover a penalty 3066 

Agent 

Judgment against agent of rail- 
road 3065 

Service of process upon agent 

of railroad 3065 

Agricultural lands 

Annexation to city or town, 

n. 9, 3197 
Taxation, right to exemption 
from city or town repealed, 

n. I, 3261 

Aldermen 

Elected in large cities 3051 

Expelling 3053 

Large cities have 3053 

Meetings 305S 

Pay 3059 

President of board, how elected, 3057 

^ro tempore 30 ^7 

signs ordinances 3057 

Term .' 3053 

Vacancy in office 3053 



893 



694 



Alleys SEC. 

Cleaning cl. lo, 3106 

Highways are n. 5, 3161 

Improvement in city 3161, 3162 

town cl. 9, 3333 

Obstruction in town cl. 6, 3333 

Opening in city. ...... .3166 to 3194 

See Streets, Opening in City. 

Opening in town 3367 

Vacation, city may 3166 to 3194 

See Streets in City,Vacation. 
Vacation, laws concerning, must 

be general 118 

towns may 33^7 

See Streets in Town, Vacation. 

Amotion 

Procedure for city ... .n. i to 7, 3101 

Amusements 

License for may be exacted b_v 

by city cl. 15, 3106 

Animals 

Cattle at large may be excluded 

from city .cl. 35, n. 2, 3106 

Cruelty to may be prohibited, 

n. 4^3155 
Dead, removal, 

cl. 22, n. 2, and cl. 35, n. 2, 3106; 3226 

Dogs, taxation in city 3156 

town cl. 15,3333 

Exhibition in street, .cl. 15, n.3, 3106 
Failure to confine. . . .cl.3, n. i, 3106 
Fowls, impounding, 

els. 21 and 27, 3106 

running at large cl. 21, 3106 

Frightening horses, cl. 18, n. 9, 3106 
Hogs excluded from city or. 

town cl. 35, n. 2, 3106 

Horses, impounding, 

els. 21, 27, 3106 

speed of els. 17, 29, 3106 

Impounding by city cl. 21, 3106 

Running at large, city may pro- 
hibit cl. 21,3106; n. 4, 3155 

town may prohibit cl. 5, 3333 

Swine, impounding, .els. 21, 27, 3106 
Unlawfully at large, city or 
town not liable for damage 
committed by, , .cl. 21, n. i, 3106 

Annexation 

Acquiescence in proceedings by 

land-owner, effect n. 8, 3196 

Adjoining lots 3195; 3197 

Agreement between city and 
town for annexation of 

town 3234 

See Union of City and Town. 

Agriculural lands may be an- 
nexed n.9, 3197 

Amalgamation of city and town, 3233 

Appeal from proceedings, 

n. 5' 3197; 3243 



Annexation {conf'd) sec. 

effect 3246 

trial upon 3245 

Approval of plat 3196 

Auditor's duty 3244 

Bond for appeal must be filed, 3243 
Collateral attack upon proceed- 
ings n. I, 3197 

Common law authorizes annex- 
ation n. I, 3196 

Conclusiveness of order. . . n. 4, 3196 

Consent of land-owner 3196 

resolution upon such consent, 3196 
Consolidation of city and town, 3238 

See Union of City and Town. 
Constitutional, statute author- 
izing is valid n. i, 3196 

Contiguous, territory annexed 

must be n. 2, 3196; n. 2, 3195 

with consent of owner 3196 

what territory is such. . .n. 5, 3196 
Copy of councils' resolution re- 
corded 3196 

County board must act upon 

petition n. i, 3197 

can not act at special session, 

n. 4. 3197 

' Disannexation of territory'- 3247 

Eminent domain, not an exer- 
cise of power under . . . n. 7, 3195 
Injunction to prevent, when I'es, 

n. 2, 3, 3195 
Legalizing of annexation, ef- 
fect n. 1,3195 

Map or plat. 3196 

Notice of proceedings, before 
board of county commis- 
sioners 3196 

effect n. 7, 3196 

proof of publication 3196 

Order-book entry 3197 

Petition, clerk's certificate to. . 3196 

form 3196 

by Avhom presented n. 5, 3196 

sufficiency n. 5, 6, 3196 

Plat, approval 3196 

who makes n. 8, 3195 

Platted, territory' annexed, when 

must be n. 5,3195 

Quo warranto does not lie . n. 4, 3195 
Reasons for annexation, state- 
ment in petition n. 3, 3196 

Record of proceedings 3^97 

Resolution of annexation by 

council 3195 

to present petition to county 

board 3196 

School-house belonging to town- 
ship, effect upon n. 6, 3197 

Special session^ board can not 

act during n. 4, 3197 

Tax, enjoining collection when 

annexation illegal n. 8, 3156 



895 



Annexation {co7ifd) sec. 

recovering back n, 8, 3197 

platted land, taxing n. 7, 3197 

Town can not be annexed in 

whole or in part n. 6, 3195 

Township, effect upon its school 

house annexed n.6, 3197 

Trial on appeal 3245 

Unplatted territory, council 

can not annex n. 3, 3195 

county board annexes, 

n.4, 3195; 3196 
procedure 3i97 

Annexation by town 

Appeal from proceedings . . . . , 3243 

effect 3246 

transcript 3244 

trial of 3245 

Collateral attack on proceed- 
ings n.5, 3389 

Constitutionality of statute, n. i, 3389 
Contiguous territory, what is 

n. I, 338S 
effect of annexation, order up- 
on n.5, 3389 

Notice of pendency of proceed- 
ings, sufficiency n. 3, 5, 3389 

Order extending boundaries of 

town 3388 

Out-lots 3388 

Petition 3388; 3389 

Plat filed with recorder 3388 

Powers of county board . . .n. 4, 3389 
Presumptions in favor of legal- 
ity of proceedings. ... .n.4, 3389 
Reasons assigned for annexa- 
tion n. 2, 3389 

Resolution, copy of filed with 

recorder 33S8 

Trustee's duty when petition 

presented *. 3389 

Unplatted lands 3389 

Annual settlement 

City treasurer and clerk make, 3093 

Appeal 

Annexation proceedings, lies to 

circuit court 3^43 

Bond in annexation proceed- 
ings 3246 

effect 3243 

Bond in penal action 3067 

survey 3073*^' 

City attorney may take in pe- 
nal actions n. 2, 307S 

Penal action, appeal lies to cir- 
cuit court n. 9, 3066 

supreme court n. 13, 3066 

Survey 3073'' 

Trial on in annexation proceed- 
ings 3245 



Appropriations sec. 

In large cities must originate in 

council 3055 

Ordinance for 3105 

When can not be made in city • 
of 16,000 3124 

Arbitration 

City may submit to an arbitra- 
tion n. 20, 3106 

Arms 

Bond to secure arms 3227 

Distribution 3227 

Governor ditributes to city or 

town 3228 

Loan of secured by bond, n. 5, 3155 
Resolution to secure arms .... 3227 

Arrest 

Action for penalty commenced 

by arrest 3066 

Aiding officer to make 

n. 8, 3076 ; 3076a 

Breaking doors n, 10, 3076 

Chief of fire department may 

make \ 3201 

Citizens must aid in making. .3076a 
City officers may be empowered 

to make cl. 29, 3106 

Confining offender n. 17, 3076 

Conservators of the peace, who 

are 175 

Councilmen may be empowered 

to make cl. 29, 3106 

Custody, when person in, may 
be arrested by another offi- 
cer n. 23, 3076 

Definition n. 2, 3076 

Detaining prisoner n. 16, 3076 

Doors, breaking n. 10, 3076 

Electors during election can 

not be, on civil process. .. . 93 

Escape n. 18, 3076 

Extra-territorial illegal, . n. 19, 3076 
Felon, who may arrest . , . .n. 4, 3076 

Felony, what is n. 10, 3076 

Female can not be required to 

aid in making n. 8, 3076 

Fleeing n.ii, 3076 

Force may be used to make, 

n. 9» i9> 3076 

Fugitive 3076 

Good cause for, what is. .n. 12, 3076 
Governor's proclamation au- 
thorizes officer to make, n. 12,3076 

Hand-cuffs n. 5, 3076 

How made n. 2, 3076 

Immoderate riding or driving, 

cl. 17, n. I, 3106 
Injunction to prevent ... .n. 21, 3076 
Jailer receiving prisoner, n. 17, 3076 
Killing felon n. 11, 20, 3076 



896 



Arrest {confd) sec. 
Magistrate, should be taken be- 
fore n. 16, 3076 

Manner of making n. 2, 3076 

Market master may make, cl. 29, 3106 
Marshal of town may make, 

n- I, 2,3327 

of city may make notes, 3075 

Mayor may order n. 6, 3076 

should be taken before, n. 16, 3076 
Metropolitan police may make, 3221/ 

Mittimus 3076^ 

Name unknown n. 7, 3076 

in warrant n. 7, 3076 

Notice of intention to make, n. 2, 3076 

On view n. 12, 3076 

Ordinance violated, without 

warrant n, 13, 3076 

Posse comitatus n. 8. 3076 

Powers of city marshal to make, 

notes. 3075 
Reasonable ground for. . .n. 12, 3076 

Receipt for offender 3076^ 

Releasing prisoner n. 16, 3076 

Rescuing prisoner, n.4, 3155 

Resisting n. 5, 9, 19, 3076 

Searching prisoner n. 15, 3076 

Self-defense n. 20, 3076 

Shooting n. 20. 3076 

Suspicion n. 12, 3076 

Taking offender before magis- 
trate n. 16, 3076 

View, arrest upon n. 12, 3076 

Violence n. 5, 3076 

Warrant must be in due form, 

n. 7, 3076 

not necessary in felonies, n.4, 3076 

sent to another county, .n. 4, 3076 
What is not an arrest ... .n. 22, 3076 

Artesian wells 

City may dig cl.26, n.3, 3106 

Assault and battery 

Pushing n.5, 3155 

Ashes 

Removal in a city . . cl. 10, n. i, 3106 
town cl.3, 3333 

Assessor (city) 

Abolition of office in city and 

town 3160; 3262; 652i« 

Appointment of, when 3071 

city n- 1,3, 3071 

Assessments 3071 

Assistants by 3071 

Board of equalization, belongs 

to 3156 

Bond 3095 

Deputy 3043, 3071 

Duties concerning loans 31 18 

real and personal property, 

3071, 3072 
Election for city 3^43 



Assessor (city) {coneti) sec. 

Improvements destroyed, diitj'. 3072 
Member of board of equaliza- 
tion (now abolished) 3157 

Oath of office 3095 

Realty assessed, when 3072 

Term in city , 3^43 

Vacancies 3050, 3071 

See Taxation. 
Assessor (town) 

Abolished 3262 

Assessment 

Lien in street improvement . . 3175 
See Street Improvement. 

Association 

To incorporate a town 3493 

Attorney for city 

Appeal, power to take for city, 
n. 2, 

Appointment 

Bond and oath 

DraAvs all city papers and ordi- 
nances 

Duties , 

Duty in street opening pro- 
ceedings 3182, 

Election in large cities 

term 

Employment n. 13, 

Fees n. i, 2, 5, 

General duty 3078, 

Notified of appeal in street 
opening proceedings 

Oath 

Obstructions in street, brings 
action to remove 

Pay n. I, 2, 

Prosecutes and defends actions 
for the city 

Removal ^ .n. i, 3078; n. 6, 

Term of 



3078 
3043 
3095 

3078 
3078 

3191 
3054 
3054 
3106 
3078 
3182 

3180 
3095 

3191 
3078 

3078 
3043 
3043 



Attorney-general 

Examines mayor's dockets, 

n. 9, 3062 

Auction 

Auctioneer not an agent of the 

city cl. 38, n. i, 3106 

Defined cl. 38, n. i, 3106 

License from city cl. 38, 3106 

town cl. 7, 3333 

Auditor (city) 

Duties 3043, 3087, 3123 

Election of 3043 

Auditor of county 

Duty in annexation proceed- 

'ings 3244 

Trustee of county library .... 3784 
See Taxation. 



897 



Ayes and noes sec 

Called on adoption of ordi- 
nance 3099 

Record of in large cities 3058 

Bail 

Bond 3066 

Money in lieu of can not be 

taken , n. 10, 3062 

Ballots 

Kind for incorporating cities. . 3035 
Must be used in elections .... 94 
See Elections. 

Ballot-box 

Town procures for incorporat- 
ing a city 3034 

See Elections. 

Banks 

City may tax 3156 

Library companies may not 

engage in banking 3797 

National banks may be taxed, 

n- 5> 3254 

Stock, appraisement 3260 

assessment 3257 

cashier of bank pays tax 

upon stock 3258 

collection of tax dvie upon 

stock 3258 

constitutionality of law as- 
sessing n. 6, 3254 

county auditor furnishes 

statement to city 3255 

deduction of taxes upon from 

dividends 3258 

deduction of indebtedness 

from value of stock. . . .n. 7, 3254 
dividends liable for taxes due 

upon stock 3258 

how assessed n, 3, 3254 

indebtedness of owner may 

be deducted n. 7, 3254 

lien of tax upon 3259 

list furnished by county au- 
ditor 3255, 3256 

mayor files statement with 

clerk 3257 

mayor demands list from 

county auditor 3255 

national bank stock can be 

taxed n. 5, 3254 

non-resident holders may be 

taxed n. 2, 3254 

payment of taxes due upon, 3258 
president of bank pays taxes 

due upon 3258 

taxation 3254 

valuation 3260 

Schools get old bank tax fund, 183 
State bank could not be taxed, 

n. 1,3254 
57 



Banks (confd) sec. 

Statement of county auditor, 

3255' 3256 
Town taxing 3254 to 3260 

Bastardy 

Mayor may try case of ... .n. 6, 3062 

Bathing 

Places of may be regulated by 

city ci. 19, 3106 

Bawdy houses 

Regulation.. , n. 3, 3155 

Renting cl. 21, n. 2, 3106 

Suppression cl. 21, n. 2 3106 

Beggars 

City may punish cl. 20, 3106 

Bells 

Ringing may be restrained, 

cl. 23, 3106 

Bids 

Sewer cl, 43, 3106 

See Street Improvement. 

Bills of mortality 

City may keep cl. 25, 3106 

Definition of cl. 25, n. i, 3106 

Births 

Reported to board of health. . . 4995 

Board of aldermen 

Acts concurrently with council, 3054 
Large cities have . . .3053, 3054, 3055 

President ot, election 3057 

acts as mayor when 3060 

Board of county com- 
missioners 

Annexing territory to citjr. 3196, 3197 

to town 3389, 3390 

Board of health acts as 4993 

Board of equalization 

Meetings of city board of equal- 
ization 3157 

Powers 3157 

Board of health (city) 

City maj' establish, cl. 35, 3106, 3098 

Contracts of n. 2, 3104 

Council elects members of 309S 

De facto board cl, 35, n. i, 3106 

Mayor and councilmen maybe, 4993 

Members of 309S 

term 309S 

Ordinance creating cl. t,^, 3106 

President of metropolitan po- 
lice a member of 3-~i^ 

Board of health (county) 

Accoucher reports to 4995 

Births reported to 4995 

Blanks, . procures, from state 

board 499S 



Board of health (county) 

{confd) SEC. 

Clerk of board and his duties . . 4996 
Coroner's duties with reference 

to 4995 

Council acts as 4993 

County commissioners may 

act as 4993 

Deaths reported to 4995 

Be facto hod.rd cl. 35, n. *, 3106 

Duties of board 4994) 4997 

secretary 4993 

Fees of county clerk 499^ 

Fines 4994^ 4995 

Forms supplied by state board, 4998 
Householder reports death or 

birth to 4995 

Mayor member of board 4993 

Mayor and council act as 

board 4993 

Misdemeanor not to report to, 

4994> 4995 
Notice to report birth or death, 4995 

Penalties 4994) 4995 

Physicians report to 4994) 4995 

Report of county board 4994 

Secretary 4993 

Board of health (state) 

Accoucher's reports 4995 

Annual report of board 4987 

Appointment of members 4986 

Appropriation, annual 5000 

Births, reports concerning .... 4995 

Blank forms prescribes 4998 

furnishes local board 4994 

prepared by secretary 499^ 

By-laws, may adopt 4988 

Clerk of count}', duties to .... 4996 

fees 4996 

Coroner's duties to 4995 

County board's duties to. .4993, 4998 
Deaths, reports concerning . . . 4995 

De facto board cl, 35, n. i, 3106 

Duties 4987, 4988 

of secretary 499^3 

Examinations, may make of 

premises 4988 

Expenses of board 499 1 

Fees of county clerk 4996 

Forms prescribed 499^ 

prepared by secretary 499^ 

Local boards subordinate to. . . 4993 
Marriages, reports concerning, 4996 

Meetings 4988 

Members, appointment 4986 

expenses 4991 

salaries 4991 

terms 4986 

Office furnished 4999 

Physicians 4995 

President, how chosen 4988 

Quarterly meetings 4988 



Board of health (state) 

[cojifd] SEC. 

Quoru m 498S 

Record kept by secretary- 4990 

Reports annually 4987 

of local board to 4994 

Rules, may adopt 498S 

Salary of secretary 4991 

Sanitary statistics collects, 4990, 4992 
Secretary, blanks prepares. . . . 4990 

duties 4990 

expenses 4991 

information collects 4990 

member of board 4989 

salary 499^ 

term of office 4989 

State board, who composes. . . . 4986 

Statistics, collects 499©, 4992 

Terms of officers 4986 

Vacancy, how filled 4986 

Vital statistics, collects. . .4990, 4992 

Board of health (town) 

Town trustees act as 4993 

Board of police 

City may establish .cl.8, 3106 

See Police. ' 

Board of public im- 
provements 

Buildings, condemn cl.32, 3106 

City may establish cl.32, 3106 

Powers. cl.32, 3106 

Board of town trustees 

Board of health acts as 4993 

Census, orders, of town for in- 
corporating as a city 3031 

City election, orders, when first 

incorporated . 3037 

clerk, appoints, for such 

election 3034 

Concurs in marshal's appoint- 
ments of enumerators .... 3032 

Divides city into Avards 3037 

Election for incorporating city 

orders 3033 

affidavit of result, makes. . . . 3035 

inspector, appoints 3034 

Wards, divides city into for first 

election 3037 

See Towns. 

Board of waterworks 
trustees 

See Waterworks. 

Bona fide purchaser 

Purchaser of railroad aid 

bonds n. 14, 3152 

Purchaser of bonds protected, 

n. 4. 3119 



Bonds SEC. 

Aid to railroad by city 3152 

Affidavit showing value of tax- 
able property 31 19 

request for 31 19 

journal entry 31 19 

Bid, bond accompanj/ing bid for 

public work 3162 

Bridge companies 3152 

Bona fdc purchaser protected, 

n.4, 3119 
Cancelled by city treasurer. . . . 3080 

Coupons n. 5, and 31 19 

Custodian 3079 

Excessive issue, effect 3120 

Form n.6, 3119 

Formalities, what are neces- 
sary n.3, 3119 

Funding in cities having $30000 

of debts 3125 

having 16,000 population, 

3"S, 3119 

having 16,000 voters 3120 

in cities and towns having 
less than 10,000 voters.... 3230 

Hydraulic companies 3^53 

subscription to stock 3^53 

Interest secured by coupons, n. 2, 3343 
Investment of city funds tem- 
porarily 3i58« 

Lost n. 6,3119 

New in place of embezzled 

bonds may be issued 33^4 

Notice of sale 31^9 

Official, city 3095 

Officers of city can not pur- 
chase 3104 

Ordinance authorizing issue of 

bonds 3119 

Power of town to issue. . . .n.3, 3343 
Premium received by treasurer, 

n. 2,3083 
Railroad companj^ see. 

Rate of interest 31 19 

Receipt for cancelled bonds. . . 3083 
Redemption of sinking fund 

bonds 3126a 

treasurer makes 3080 

Registry 3119 

Report of committee concern- 
ing 3119 

treasurer of city 31 19 

School purposes 4488 

Seal omitted, effect n. 7, 31 19 

Security for arms loaned city, 3227 
Sinking fund, see. 
Squandered, new bonds maybe 

issued in place of n. 1,3119 

Statute must authorize the is- 
sue n. I, 2, 31 19 

Temporary investment 31 5^^ 

Town may issue, n. i , 3342 ; 3343 ; 3230 
how sold 3344 



Bonds {confd) SEC. 

sinking fund 3231 

tax to pay 3345 ; 4490 

to erect public buildings, 

3343 to 3345 

Treasurer's report 3^ 19 

required to give extra bond . . 3345 
Turnpikes, donations to, 

3152; R.S. 1881, §5099 
United States bonds can not be 

taxed n. 9, 3156 

Water-works bonds 3265 

See Debt. 

Bonds (official) 

Action upon n.3, 3095 

Approval 3095 

City officers, where filed 3095 

Clerk of town 3320 

Marshal of town 3320 

Mayor 3062, 3095 

Failure to give 3050<i 

effect n, i, 3050^ 

Form 3095 

Sureties n. 5, 3095 

Treasurer of town 3320 

Bond of indemnity 

City may take from one depos- 
iting obstructions in street, 

cl. 18, n. 2, 3106 

Books 

Clerk has custodv of city's. . . . 3068 
See Schools. 

Borrowing 

City may n. 22, 3106 

Boundaries 

City 3248 

Tov/n 3248 

Bribery 

Disqualifies for holding office . 87 

Bridges 

Aid to build may he given by 3152 

city 

City may locate and regulate, 

cl. 40, 3106 
has exclusive control over . . 3161 
has exclusive control over 
county bridges within city 

limits cl. 40, n. 4, 3106 

outside city limits 3161 

County builds within city or 

town 3161^ 

Purchase by citj'^ 3^52^^ 

by city on state boundary 

line cl. 40, 3106 

Railroad must build over 

streets n. 28, 3161 

Repairing, city must n. 25, 3161 

county bridges, city must re- 
pair cl. 40, n. 4, 3106 

town must n. 4, 332S 



900 



Bridges {cont'd) sec. 

Wabash and Erie canal, must 

repair cl. 40, 3106 

Stock in taken by city 3152^^ 

Town must repair n. 4, 332S 

has exclusive power over . . . 3367 

may build 33^7 

Traction engine upon. . . .n, 25, 3161 
Viaducts ..,,,,»,.. .cl. 40, n. 3, 3106 

Buildings 

Condemnation cl. 32, 3106 

Destruction to prevent fires . . 3203 
payment for buildings so de- 
stroyed 3203 

Manufactories o cl. 4, 3106 

Nuisances in els. 4, 10, 3106 

Permits to erect cl. 32, 3106 

Private . .3156, 3161, 3198, 3199, 3203 

Public cl. 45, 3106 

Removal. . , , ,cl, 32, 3106 ; n. 3, 3155 

Burials 

City may regulate and prohibit 

within its limits, cl. 5, n. 3, 3106 

By-!aws 

General welfare clause au- 
thorizes adoption 3^55 

Mayor tries violation of 3062 

Publication in town cl. 16, 3333 

Recording and signing 3099 

Synonymous with ordinances, 

n. 2, 3099 
Water-works trustees may 

adopt 3272 

See Ordinances. 

Cabs 

Stands and rates regulated by 

city cl. 36, 3106 

Canals 

Use for water-works 4203/^ 

Carriages 

City and town may tax 3'^S^ 

Cattle 

Running at large in city 

cl. 21, 3106; cl. 35, n. 2, 3106 

Cemetery 

Beyond corporate limits, city 

may own n. 2, 3154 

Control 3287 

Conveyance by county board of 

commissioners to city 3286 

Council may establish, els, 5, 45, 3106 
Deed of county commissioners, 32S6 

acceptance 3287 

recording . 3287 

Exempt from taxes 6276 

Expense of removal of dead. . .3290a 

Gift of 3290a 

Injoining use of , , . , .cl. 5, n. i, 3206 



Cemetery {cont'd) 

Prohibiting use of outside cor- 
porate limits n. i, 

Protecting 

Purchase 3290a/ cl. 45, 

Notice of list of dead 

Ordinance to protect 

Petition to vacate 

Real estate, city may purchase 

for cl. 45, 

Removal of dead from, 

3290; cl. 5, n. 2, 

notice of list of dead 

notice to remove dead bodies, 

petition for removal 

order for removal 

record of dead removed 

R.esolution for a conveyance . . 
Rules may adopt for regulating, 

CI.5, 
Street improvement can not be 

assessed for n. 17, 

Taking land for is taking for a 

public use n. i 

Taxation, exempt from 

Town may purchase, lay out 

and regulate cl. 13, 

acceptance from county 

conveyance to by county 

board 

powers as to 

re-interment 

title to 

vacation of 

Use of eminent domain to ac- 
quire n. I 

Vacation „ 

notice to remove bodies 

petition to vacate 

record of removal 

re-interment . . . , 

rem.oval of bodies 

title , 

Census 

Incorporating town as city, how 
taken 3031 ; 

Time within which must be 
taken 



SEC. 

3106 
3288 
3106 
3291 
3288 
3290 

3106 

3106 
3291 
3291 
3290 
3290 
3291 
3286 

3106 

3162 

8,66 
6276 

3333 

3287 

3286 
32S8 
3291 
3292 
3289 

8,66 
3289 
3291 
3290 
3291 
3291 
3291 
3292 



3032 
3032 



Charges 

How preferred against city of- 
ficers 3101 

Charter 

City m.ay surrender 3127, 3128 

decree for. 3128 

effect .... 3039 to 3041 ; 3129,3130 

Special can not be granted by 

legislature, .n. i, 119; n. 6, 3031 

Surrender . .3127 to 3130 ; n. 4, 3106 



Charitable institutions 

Taxation 



6276 



90I 



Chief of fire department sec. 

Arrests may make 3201 

Common council elects 3098 

Duties and powers = 3204 

Churches 

Assessment for street improve- 
ment n. 17, 3162 

Exemption from taxes 6276 

Cider 

Sale of may be regulated by 

city cl. 13, n. 4, 3106 

Circuit court 

Appoints city commisioners . . 3166 
Drain establishes T,22ibb 

Cisterns 

Citv may build and regulate, 

CL43, 3106; 3151 
may take land for n. 12, 66 

Citizens 

Do not constitute the incorpo- 
ration n. 4, 3036 

May serve on juries in actions 

for penalties n. 19, 3066 

City 

Agricultural lands, taxation. . . 3261 

Debt limited 220 

See Indebtedness. 
Failure to exercise powers, ef- 
fect cl. 4, 3106 

Incorporation 3031 

must be under a general law, 212 

election for 3033 to 3035 

Local self-government, 

n. 2, 3106; n. 2, 3043 

Surrender of powers n. 4, 3106 

Powers generally n. 3, 3106 

beyond limits 3154 

Tax law governs 3160, 3263 

installments, when may be 

paid in 3225a 

county auditor may collect 

city taxes 3225a 

Union, see Union. 

City of 15,000 inhabitants 
or more 

Loans by 3116 to 31.9 

bonded indebtedness, limit of, 31 19 

bonds, issuance of 31 18 

interest on 31 19 

limit of 3119 

maturity of 31 19 

negotiation of 31 18 

sale, price of 31 19 

treasurer's duties. 31 iS 

limit of 3116 

ordinance, passage of 31 iS 

purposes of 31^ i7 

taxables, affidavit as to 3118 



City of 15,000 voters or 

more sec. 

Aldermen, board of 3051 to 3060 

expulsion of members 3053 

districts 3^53 

election of 3053 

holding over by 3^53 

ineligibility of 3^54 

meetings, public 3058 

number of 3053 

president of 3057 

acting-mayor, when 3060 

J>ro teinfore 3^57 

qualifications of 3053 

records, how kept 3058 

salary of 3059 

term of 3053 

vacancies 3053 

yeas and nays, when required, 3058 
Committees, joint, prohibited. . 3055 
Concurrent action, when re- 
quired 3054 

Councilmen in 3052 

election of 3052 

salary of 3059 

term of 3052 

Districts, aldermanic 3053 

sewer 3061 

Elections, when held 3052 

Joint convention, when 3054 

purposes of 3054 

Ordinances become laws, when, 3055 
Separate action, when allowed, 3055 

Sewers, districts for 3061 

construction of 3061 

tax for 3061 

Wards, number of 3052 

voters in each 3052 

City under 16,000 voters 

Bonds, funding, may issue .... 3230 
sinking fund, tax for 3231 

City of over 16,000 voters 

Appropriations,when forbidden, 3124 
Bonds, funding, may issue .... 3120 

for school purposes cl. 8, 4460 

Debt limited 3121 

Library tax 3122, 4460 

Loans, temporary, when 3121 

Orders, when issue of forbidden, 3123 

liability for drawing 3123 

penalty for overissue 3120 

treasurer's duties as to 3123 

Publication of indebtedness ... 3120 
School commissioners, tax by . 3122 

Statement of warrants 3120 

Tax -levy limited 312J 

City and town union 

See Union. 

City assessor 

See Assessor (City). 



902 



City attorney sec. 

See Attorney. 

City auditor 

See Auditor (City). 

City board of health 

See Board of Health. 

City civil engineer 

See Civil Engineer. 

City clerk 

See Clerk (City). 

City commissioners 

Appointment of 3166 

pro tempore 3167 

Disqualification of 3167 

Duties, general, of 3166 

Majority may act 3169 

Meetings of 3168 

non-resident owners, notice 

to 3168 

resident owners, personal 

service 3168 

Number of 3166 

Oath of 3166 

Term of 3166 

OPENING CASES. 

Alleys, altering of 3166 to 3183 

opening of 3166 to 3183 

straightening of 3166 to 3183 

Assessment for 3170 

collection of 3i77 

report of 3178 

Benefits assessed, a lien on 

realty 3175 

Bridges, appropriation of 3^79 

Change of lines of thorough- 
fare 3190 

City marshal serves notices . . 3168 

Damages, tender of 3182, 3183 

payment of 3176. 3182 

Examination of lands for 3168 

Hearing and proceedings .... 3169 
Highways, appropriation of. . . 3179 
Improvements during penden- 

, cy 3194 

Infants and msane, rights of . , 3173 

Injunction against 3181, 3183 

Interpleader, when 3182 

Meetings of 3168 

Notice, defective, effect of ... . 3173 
non-resident owners (to), 

3168, 31S3 

resident owners (to) 316S 

Plat of, record of 3192 

Proceedings before reference . . 3167 

before commissioners 3169 

in common council 3^74 

Reports from commissioners, 

3171 to 3175 
action upon 3^74 



City commissioners {cont'd)^^^. 

appeal from 3180, 3181 

reference back 3189 

second report 3189 

action upon 3189 

Sewers, taking land for. 3166 to 3183 

Streams, altering of. . „ .3166 to 3183 
straightening of 3166 to 3183 

Streets, altering of 3166 to 3183 

opening of 3166 to 3183 

straightening of 3166 to 3183 

Water-courses, as to. . . .3166 to 3183 

VACATION CASES. 

Alleys, of 3184 to 3194 

changing location of 3190 

proceedings 3190 

Benefits, assessment of 3185 

payment of 3187 

report of 3186 

Highways, of 3184 to 3194 

Improvements, during pen- 
dency 3194 

Petition for 3184 

plat to accompany 3184 

Petitioners pay expenses 3184 

notices serve 3184, 3185 

Plat, record of 3192 

who makes 3i93 

Proceedings by commissioners, 3185 

in common council 31S7 

Report (first) by commission- 
ers 3186 

action upon 3187 

reference back 3189 

second report 3189 

action upon 3189 

Squares, public, of 3184 to 3194 

Streets, of 3184 to 3194 

changing location of 3190 

proceedings 3190 

Water-courses, of 3184 to 3194 

See Streets, Opening and Vacation of. 

City court 

Accused, arrest and detention 

of 3066 

committment of 3067 

Appeals from 3216 

Changes of venue from 3213 

Civil causes, certain, triable in, 3207 

Commitment 3067 

Constable's duties in 3218 

Courtof record, jurisdiction as, 3209 
Execution, issuance of 3217 

stay of 3217 

transcript (on) . , 3212 

Fees, city judge's 3219 

city marshal's 3218 

Constable's 3218 

Issues of 3214 

Judge, bond of 3205 

clerk of court acts as 3212 



903 



City Court {confd) sec. 

commission of 3205 

election of 3043> 3204 

fees of 3219 

law, may practice 3231 

oath of office 3205 

powers of 321 1 

pro tempore 3220 

qualifications of 3204 

seal of 3208 

term of office 3204 

vacancy 3050 

Judgment, effect of 3209 

stay of 3067 

Jurisdiction of 3206 

Mayor, see. 

Name of court 3206 

New trial, how had 3215 

Penalties, action for, how 

brought 3066 

trial of ; 3066 

Pleadings, rule as to 3066 

Process, service of 3066, 3210 

Realty, how sold on writ of . . 3212 

Records, how kept 3212 

Rules of 321 1 

See Court (City). 

City judge 

See City Court. 

City marshal 

See Marshal (City). 

City treasurer * 

See Treasurer (City.) 

City orders 

See Orders. 

Civil engineer (city) 

Appeal from 3073<7 

bond 3073^ 

Appointment 3043 

Bond 3095 

Costs of street improvement, 

ascertains 3163 

Dock construction, superin- 
tends 3149 

Duties 3073 

Election in large cities 3054 

Estimates, compelled to make, 

n. 8, 3073 

form 3073 

makes 3073 

Fees as surveyor n. 4, 3073^ 

Grade, can not establish, .n. 10, 3073 

nor change n. 1,2, 3, 3573 

Harbors 3132 

Oath 3095 

Orders of council, fulfills 3073 

Plans, prepares 3^73 

for docks 3146 

Plat of street, makes 3192, 3073 

Record of surveys, keeps 3073 



Civil engineer (city) {cont'd)sKc. 

Removal n. 6, 3043 

Surveys, makes 3^73 

evidence of 3073 

record 3^73 

Specifications, makes 3073 

Street lines, preserves 307S 

Superintends opening street . . 3073 

public works 3073 

Term 3043, 3054 

Vacancy , 3050 

Claim 

Allowance by city 3069 

City officers can not purchase 

against city 3104 

Payment 3069 

ToVn 3340 

Clarksvilie 

Amending charter 235 

Clerk (city) 

Accountsof city, keeps. ...... . 3069 

Assessment for taxes, corrects, 3157 

makes 3262 

Banks, assessments of 3257 

Board of equalization, mem- 
ber of 3157 

Bond and oath 3095 

conditions n. 2, 3095 

Bonds for loans, duties as to. . „ 31 18 
Books and papers, keeps, 3068, 3058 

copies as evidence 3068 

Caption of transcript 3068 

Certificate to transcript 3068 

of election 3095 

Copy of city commissioners' re- 
port, delivers to treasurer, 

3i74>3i75 
Copies and transcripts, makes . 3068 

Delinquent list, makes 3093 

Deputy 3043 

how selected in large city ... . 3058 

keeps records of board of 

aldermen 3058 

Documents, files and keeps. .. . 3069 
Duplicate tax list, makes and 

delivers to treasurer 3070 

Duties 3068, 3069 

concerning loans 31 iS 

Election 3043 

certificate of, from 3095 

Embezzlement by filling up 

blank warrants n. 5, 306S 

Fees for copies 3068 

Ferried, appeal bond filed with, 3103 

duties on appeal concerning 3103 
Files and keeps documents 3069 

city commissioners' reports, 3175 

Firemen registered by 3202 

Funding bonds, duties as to. . . . 3120 
Harbor, duties as to, 

3134; 3136; 313S 13144; 3146; 3147 



904. 



C\erk.{c\ty) {con fd) sec. 

Justice of peace, when may 

serve as .... n. i, 176 ; n. 6, 3068 
Licenses, countersigns and reg- 
isters 3068 

dog 306S 

general 3068 

market 3068 

Loans, duties as to 31 18 

Meetings of council, attends . . 3068 
Member of board of equaliza- 
tion 3157 

Minutes of council, keeps.... 3097 

Monthlj' statement 3069 

Notice of condemnation pro- 
ceedings, issues 3266 

election, gives 3304 

Notifies city commissioners of 

appointment 3161 

proposed opening of street. . 3168 
corporation of proposed open- 
ing of street 3^79 

persons elected to office .... 3048 

Nunc fro time entry n.i, 3068 

Oaths, can not administer, .n. i 3068 

official 3095 

filed Avith 3049 ; 3095 

Orders, draws 3069 

overdrawing, penalty for. ... 3123 

register of, keeps 3069 

restrictions as to drawing . . . 3069 

Ordinances, attests 3099 

book of, keeps 3099 

Permits, countersigns and reg- 
isters 3068 

Plat of city, signs 3249, 3250 

Proceedings, keeps 3068; 3097 

Proof of publication of notice, 

obtains 3168 

Quietus, issues 30S0 

Receipts 3080 ; 3069 

for canceled bonds 30S3 

Records, keeps 3058 

how may make n.i to 3, 306S 

in cities of 15,000 3058 

Record of street openings, keeps, 3188 
Registry of orders and receipts, 

keeps 3069 ; 30S0 

Report as to taxes 3070 

monthly 3069 

Seal, uses 3068 ; n . 4, 3062 

Settlement, makes, with treas- 

ui"er 3093 

how made 3090 

statement, makes 30S3 

tax sales, reports, to 3092 

Sewer certificate, issues , .ci.43, 3106 
Signs statementof city's indebt- 
edness . . , ." 3120 

Street improvements, duties of, 3165 

changes, duties of 3190 

opening, 

3168; 3174; 3175; 3178; 3192 



Clerk (city) {confd) sec. 

vacation 3188 ; 3192 

Survey, keeps 3251 

Tax deed, signs n. 3, 3094 

warrant, issues 3070 

Taxes, duties as to 3070 ; 3262 

Term of office 30435 3050/; 

Town, union of, duties as to . . 3238 
Transcript 3068 

caption 306S 

certificate 3068 

Treasurer's report, presents, to 

council 3083 

Vacancy, how filled . . . .3050; 3050a 

term 3050^* 

Water-works, as to, 3266 ; 3267; 3269 
Warrants, draws and counter- 
signs 3069 

Clerk (circuit court) 

Approves mayor's bond 3062 

Record of result of city election, 

makes 3035 

tovrn election, makes 3309 

Trustee of county library 3784 

Clerk (town) 

Bond of 3320 

County auditor acts as in tax 

sales 3351 

Election 33o8 

Duties of '. . . . .3310; 3324 

Notifies street commissioners, 3368 

land-owners 3266 

Oath of 3313 

Records, keeps 3324 

Treasurer may act as 33o8 

Coaches 

Council may regulate use of, 

cl. 12, 3106 
Standing in street . .cl. iS, n. 3, 3106 

Coal 

Sale of, regulated by city, cl. 31, 3106 

College 

Exempt from taxation 6276 

endowment exempt. . .6278; 6278a 

Commitment 

City 3066 

State 3067 

Commissions 

Effect of issuing n. 4, 3043 

Election certificate may serve 

as n. 2, 3047 

Governor signs 228 

Mayor signs n. 4, 3043 ; n. 5, 3062 

Common council 

Acts proved by records, 

n. 2 to 4, 3068 

Adjourning over n. 7, 3097 

Arrest, may authorize council- 
man to make cl. 29, 3106 



905 



Common council {confd) sec. 

Assessment for taxes 3i57 

Board of equalization, acts as . 3157 
Board of health, elects, 

309S; cl.. 35, 3106; 4993 
Board of public improvement, 

may establish cl. 32, 3106 

Bond, not required to give .... 3095 

Bridges, power over 3161 

Called meetings, powers . .n. i, 3097 
Census, orders, for incorporating 

city under general law. . . . 3031 
Chief of fire department, elects, 3098 
Charges before, how preferred, 3101 

Clerk attends meetings 3068 

records, keeps 3^97 

Consents to mayor's depositing 

docket with justice 3063 

Contempt, may punish, 

cl. 50, n. I, 3106 

Contracts, interest in 3104 

Costs, may impose 3i55 

Delegation of powers, may not 

make n. 4, 3096 

Deputy's selection, ratifies, 

n. 7, 3043; 3098 
Disorderly person, may remove 

from council chamber, 

cl. 50, n. I, 3106 
Docket of mayor, takes charge 

of 3063 

order concerning 3063 

Duties of 3106; 3227; 3155 

Election of city officers 3098 

Election of 3043 

Expulsion of members 3101 

Exemption from street improve- 
ment, may give cl. 49, 3106 

Finances of city, controls 3106 

Grade of street, must establish, 

n. 10, 3073 
Inspects home for friendless 

wom.en 6242 

Jurisdiction, two-mile limit, 

3154; els. II, 4, 26, 45, 3106; 3062 
Majority of council, what is, 

n- 5» 3097 
Mayor a member of n. 4, 3096 

casting vote 3096 

Meetings, resolutions for, 3096; 3097 

notice of n, i , 2,4, 3097 

presumption as to , . , .n. 3, 6, 3097 
Members of, not personally lia- 
ble n. 1 , 3096 

may expel 3101 

Minutes, signing n. i, 3097 

kept by clerk 3^97 

Notice of meeting n. i, 2, 3097 

sufficiency n.4, 3097 

Nunc j^ro tiific entry n. i, 3068 

Oath of members 3095 

Officers, appoints, when . . ,n. 3, 3098 

may expel 3101 



Common council [confd) sec. 

Order of business 3096 

Ordinances, passage 3099 

publication 3100 

Penalties, limit may impose. . . 3155 
Powers over street is exclusive, 3161 

in general 3106 

Presumption, meetings presum- 
ed to be regular n- 3> 3097 

that all members were pres- 
ent n. 6, 3097 

President /r<9 tcm n, 5, 3096 

appointment, form ......... 3096 

can not sign precept n. 5, 3096 

Property of city, controls, 

3106; and cl.29, 3106 

Quorum n. 5, 3097 

Records, nunc fro tunc entry 

of n. 1 , 3068 

signing n. i, 3097 

Records result of town election, 3310 
Removal of councilmen. . .n. 9, 3043 
Rules for city officers, may 

adopt ." 3098 

Salaries of city officers, when 

determines n. i, 3105 

School trustees, elects, 

cl. 48, 3106, 4439 
Sealer of weights and measures, 

elects 3098 

Special meetings, powers at, 

n. I, 3097 
Street commissioners, elects . . 3098 
Supervisors of streets, elects . . 3098 

Term of 3043 

Tie vote n. 5, 3096 

Vacancies in 3050, 3050^ 

Welfare clause 3106; cl. 4, 3106 

Working on streets, may regu- 
late 3067 

Yeas and nays n. 3, 3099 

Commons 

Town may control 333S 

Use for ferry in city 3103 

Company 

May incorporate a town 3493 

Complaint 

Against election officer 3034 

Against officer not serving. . . . 3049 
Amendment in circuit court, 

n. II, 3066 

Before mayor 3066 

form 3066 

sufficiency n. 6, 3066 

Indorsement 3066 

Recovery of penalty 3066 

Sufficiency ' 3066 

See Forms. 

Compensation 

Pay for services 66 



go6 



Compromise sec. 

City may make cl. 19, 3106 

Condemnation proceed- 
ings 

Constitutional provisions, .notes, 66 

Conductors 

Judgment against 3065 

May be arrested 3065 

Service of process upon 3065 

Congressional fund 

Scliools get 183 

Conservator of the peace 

Judicial officers are 175 

Mayor is 3062 

Consequential damages 

Change of grade n. i, 2, 3, 3073 

Constitutional provisions do 

not apply to , , , , n. i, 66 

Constable 

City marshal has same powers 

and fees 3076, 3077 

Fees 3077« 

before city court 3218 

Mileage 3^77^ 

Process from city court may 

serve 3210 

Warrant, m_ay receive from 

mayor \ ,,,,,,,, .n. 1, 3066 

Constitution 

Laws continued in force by it. . 235 
When Avent into force 235 

Construction 

Ordinances, how construed, 

n. 18, 3066 

Contagious diseases 

Patients, confinement of. . cl. 24, 3106 

quarantine cl. 6, 3106 

removal cl. 24, 3106 

Contempt 

Common council may punish, 

cl. 50, 3106 

Disorderly person may be re- 
moved from council cham- 
ber cL 50, n. I, 3106 

Mayor may punish n. 11, 3062 

Contest 

Election proceedings, council 

acts in when 4767 

Contract 

Award to best bidder 3162 

Board of health may make, 

n. 2, 3104 

Breach of, by city n. 15, 3106 

Capacity of city to make. .n. 2, 3106 
Cisterns built under bids, 

cl. 43, 3106 
City attorney draws 3078 



Contract {confd) sec. 

City judge can not make with 

city n. I, 3212 

Contractor, rights of 3164, 3165 

Councilmen can not make with 

city n. I, 3104 

Manner of executing n. 17, 3106 

Marshal can not make with 

city n. 2, 3104 

Mayor signs 3096 

Officers can not make with city^ 

3104, 3163 
when interested in city con- 
tractor maj' be punished . .3226(7 

Ratifying n. 18, 3106 

Sewers, see. 
Streets, see. 

Void if officer has interest in. . 3163 
when 3104 

Contractor 

Must receipt records when paid, 3229? 
Notice for sewer bids, form, 

cl.43, 3106 

Copies 

Clerk makes of records 3068 

Corporation 

Actions against .44,... 3065 

County can not subscribe for 

stock 198 

Debt, State can not assume 198 

Judgment against 3065 

May incorporate a town 3493 

Must be formed under general 

laws. 212 

Personalty, taxation of 3156 

Service of process upon 3065 

Stock, taxation of 3156 

Taxed for schools 183 

Costs 

City not liable for, except for 
those made in circuit court, 

3078; n.i2, 3066 

Council may impose 3^55 

Prisoners work out 3067 

Removal of obstruction from 

street, who pays cost of. . . 3191 
Street improvement, how as- 
sessed 3163 

collected 3165a 

Worked out for town fine 3347 

Councilman 

City not liable for individual 

acts of n. 2, 3096 

Cities of 15,000 have 3052 

Conservators of the peace, cl. 29, 3106 
Election 3043 

in large city 3052? 3056 

Fire-wardens ex officio 3198 

Interest in railroad aid efFect,n.9, 3152 

may act as trustee of aid 
bonds n. I, 3104 






907 



Councilman {cont'd) sec. 

Liability for official acts .... n. 5, 3043 
Lvicrative office, does not hold, n. i, 90 
Notice to, of defective street is 

notice to citj', n. 2, 3096 ; n. 5, 3043 

Number 3043 

Orphans' home, visits n. 7, 3096 

O ffice not lucrative, n . i , 90 

Personal liability, n. i, 3096; n.5, 3101 
Removal from ward, effect, n. 9, 3043 
Salary 3105 

in large cities 3059 

Term 3043 

Town does not have n. i, 3042 

Vacancy., n.i, 2,3050; 3950a; 3050/^ 

filled by appointment 3050a 

term . . '. ,,,... 3050^ 

County 

Area 229 

Debt, State can not assume.. 198 
Exemption of property from 

taxation 6276 

Subscription to stock or corpo- 
ration 198 

County auditor 

Bank stock, duties in assessing, 3255 

City taxes, extends, on county 

tax duplicate 3225a 

Duties in assessing property, 
see taxation. 

Statement concerning bank 

stock, gives 3255 

Town taxes, extends, on tax du- 
plicate 3225a 

County treasurer 

Collects town tax 3353 ; 3203// 

pays over 3203/ 

Duties, seeTreasureri(county), 
and Taxation. 

Coupon 

Form 31 19 

Court-house 

Assessment for street improve- 
ment n.1,3164 

when can not be n. 17,3162 

Exercise of eminent domain to 

acquire n. i, 66 

Courts (city) 

Acknowledgments, judge may 

take 321 1 

Appeals from 3216 

costs upon n. 2, 3216 

to supreme court n. i, 3216 

Appointment of judge 3043 

Bond of judge 3205 

Change of venue from 3213 

Cities over 5,000 population 

may have 3204 

Commission of judge 3205 

Contempt may punish. ., 321 1 



Courts (city) [cont'd) sec. 

Contract, judge of, can not make, 

with city n. 2, 3104 

recision of may be tried in, n. 2, 3206 

Costs on appeal n. 2, 3216 

Criminal jurisdiction 3206a 

Court of record 3209 

Depositions, judge may take . . 3211 

Election of judge 3204 

Executions 3217 

Fees 3219; 3063 

marshal's 3218 

relinquishment 3063 

Females, sends to house for 

friendless women 6240 

Judge's election 3204 

bond 3205 

fees 3219 

oath 3205 

practices law 3221 

fro tempore . . . . '. 3220 

term of office 3204 

Judgment, effect 3209 

lien 3212 

Jurisdiction 3206 

Lien of judgment 3212 

Marriages, may solemnize .... 321 1 

Marshal's fees 321 1 

Mayor holds, every day 3062 

place of holding 3062 

Name 3206 

New trials 3215 

Oath of judge 3205 

Pleading and practice 3206 

Powers of judge 321 1 

Practice and pleading 3206 

Practicing law, judge may .... 3221 

Process and service 3210 

Pro tempore^ judge of 3220 

Qualifications of judge 3204 

Record, court is one of 3212 

Release of fees 3063 

Rent of office, judge can not col- 
lect from city n. i, 3212 

Resolution creating 3204 

Rules, may adopt 321 1 

Seal 320S 

Sittings 3212 

Style of court 3206 

Term of office of judge 3204 

Transcript of judgment 3212 

Trial 3207, 3214 

Vacancy in office of judge, how 

filled 3050 

See City Court. 

Crimes 

What offenses can not be pun- 
ished by a city or town, 

3066a, 3062 

Crossings 

Incumbering cl.iS, 3106 

Town may build cl. 9, 3333 

See Flagmen, and Railroads. 



9o8 



Culverts sec. 

City may regulate and locate 

cl. 40, 3106 

Damages 

Abutting owner, Avhen may 

claim n. 23, 66 

Agreement concerning amount 

n.23, 66 
Attorney's fees can not be al- 
lowed as a part n. 9, 3170 

Bond may be taken by city for 

cl.32, 3106 
Change of grade, must first be 

paid 3073 

City liable for 3161. 3203 

Compensation a judicial ques- 
tion n. 9, 66 

Consequential n.6, 3106 

change of grade causing, 

n.i, 2, 3, 3073 
constitutional provisions do 

not apply to n. i, 66 

improvement of street caus- 
ing n.7, 3162 

Depreciating value of property 

n. 23, 66 

Estimating n. 21, 66 

Evidence, 

n. 21, 66; n. 4, 3180; n. 10. 3170 
Excessive, new trial because of, 

n. 14, 3066 
Grade changed, effect, 

n. 20, 21, 66 ; n. i, 3073 
Injunction lies until paid, n. 2, 3170 

Legal tender of, what is n. 4, 66 

^Measure, 

n.5, 8, 20,21, 23, 66; n.4toii, 3170 

Mode of ascertaining n. 3, 66 

Procedure n. 3, 66 

Noise may cause n. 23, 66 

Payment or tender n. i, 3176 

Presumption as to amount and 

payment n. i, 31S1 

Proof of, 

n. 21, 66; n. 4, 31S0 : n. 10, 3170 
Railroad may be entitled to, 

n. II, 3170 

Smoke may cause n. 23, 66 

Tenant, when entitled to. .n. 7, 3170 
Tender essential, n. 7, 66; 3182, 31S3 

when must be n. i. 2, 66 

Well, when may be taken by 

city n. 3, 3170 

Witness' opinion n. 21, 66 

See Eminent Domain. 

Dancing 

Prohibition in streets n. 5, 3155 

Dangerous material 

Town may regulate keeping of. 
Day 

Fraction of, how counted, n. 5, 3067 



Dead animals sec. 

Removal, 

3226; cl.22,n.2,3io6; cl.35,n.2, 3106 

Deaths 

Reports of to board of health . . 4995 

Debts 

Action on city warrant may be 

maintained n. 2, 3069 

Annual rental n. 4, 220 

Ascertaining amount n. 6, 220 

Attorney fees n. 4, 220 

Bonds n. 3, 220 

Buildings n. 3, 220 

City of 15,000 may liquidate. . . 31 16 

Current expenses n. 3, 220 

Fire engine, purchase n. 3, 220 

Funding n. 3, 220 

Gravel road bonds n. 4, 220 

Implied contract n. 8, 220 

Labor n. 3, 220 

Light n. 3, 220 

Limit, purchase of real estate, 

n. 2, 3159 

Market-house n. 3, 220 

]SIeaning of constitutional lim- 
itation n. 3, 220 

^Municipal limit 220 

Petition for town to incur, 

n- 3- 5. 3342 

Railroad subsidy n. 3, 220 

Ratification n. 8, 220 

Safe, purchase n. 3, 220 

State can not assume m-unici- 

pality's debt = 198 

Street improvement bonds, n. 4, 220 
Tort, constitutional limit does 

not apply to n. 37, 3161 

Town, when forbidden to create, 

220, 3342 

state can not assume 198 

Two per cent, limit , . . 220 

Void, when in excess of allowed 

by law n. 7, 220 

Water- works bonds n. 3, 220 

See Bonds. 

Dedication 

Abandonment of street. . .n. 15, 3161 
Acceptance by public neces- 
sary n. 14. 3161 

Acquiescence in user of ground 

for a w-ay n. 13, 3161 

Canal in street and abandoned, 

n. II, 3161 

Conditional n. 17, 3161 

Common law dedication, n. 16. 3161 
Estoppel of abutting owner, 

n. 17, 3161 
Garden marked on plat, effect. 

cl. 45, n. 4, 3106 
Implied, must be rebutted in a 
complaint for an injunc- 
tion n. 12. 3161 






909 



Dedication [cont'd) sec. 

Intent essential n. 12, 17, 3161 

Parol proof of, sufficient, .n. 11, 3161 

Plat sufficient n. 11, 3161 

effect n. I, 2, 3374 

Public square n. i to 5, 3375 

Railroad depot grounds, .n. 15, 3161 
Sale of lots bordering on street, 

effect n. 11, 3161 

Square or plat designated on 

map, effect cl. 45, n. 4, 3106 

User sufficient n. 13, 3161 

Defaulters 

Can not hold office 91 

Defenses 

Before mayor n. 5, 3066 

Delinquent taxes 

See Taxation. 

Depositions 

City judge may take , 321 1 

Mayor may take 3062 

Depots 

Runners at, ;ity may regulate, 

cl. 37, 3106 

Deputies 

Assessors may have 3043 

Clerk of city may have . . .3043, 3058 
election and duties in large 

city 3058 

Council must consent to cer- 
tain appointments, 

n. 7» 3043 ; 3098 

Importing deputy peace officers 

unlavv-ful 3043<^> 3043*^ 

acts are illegal . . , 30431" 

penalty 3043^''' 

Marshal may have 3^43 

council approves his appoint- 
ments 3043 

Treasurer may have 3^43 

Who may not be 3043^ 

Disannexation of terri- 
tory 

Boundaries modified by city . . 324S 

Conditional, may be 3248 

acceptance of condition by 

land-owner 3248 

Consent of land-ov/ner to 3248 

Effect on taxes and liens 324S 

Notice of filing petition for . , . 3247 

Order for 324S 

Petition for 324S 

Procedure 3247, 324S 

Resolution of disannexation . . 3247 
Town, how may make. . . .3247, 324S 

Diseases 

Infectious or pestilential, power 

of city during cl. 24, 3106 



Disfranclnisement sec. 

General assembly may provide 

for 89 

Dissolution of city 

Effect n. I, 3130 

Order-book entry for 3^30 

Petition for 3130 

Summons 3130 

Town, and effect 33i8, 3319 

Distillery slops 

Regulating sale of n- 3) S^SS 

Ditches 

General drainage law may ap- 
ply to cities and towns, 

cl. 43, n. 2, 3106 

Docket 

Council consents to transfer . . 3063 
Entry of trial 3066 

what necessary 3066 

Mayor's n. i, 3063 

depositing with justice of the 

peace 3063 

Transfer, council consents to. . 3063 

order for 3063 

Docks 

Assessments for a lien 3147 

how collected 314S 

repairs niay be made for .... 314^; 

when list returnable 3148 

Built by city cl. 34, 3106 

Civil engineer superintends 

construction 3^49 

Condemnation proceedings for, 3150 

Construction by c'liy 3^45 

Contractor, city not liable to . . 3149 

Estimate of cost 3146 

Liability of city for cost of 

construction 3^49 

Lien of assessment 3147 

Notice to repair 3^44 

Plan and estimate 3146 

Proceedings to condemn land, 3150 
Rates of toll, may fix .... cl. 34, 3106 

Regulation by city 3142 

Repairing, city may compel . . 3143 
notice to repair 3^44 

Dogs 

City may tax 3156 

License from city 3068 

Taxation of, valid n. 14, 3156 

Town may tax cl. 15, 3333 

See Schools, Taxation. 

Donations 

By plat, and eftect 3375 

How made notes, 3375 

Legalized 3224^? 

Doors 

Breaking down to make arrest, 

n. 10, 3076 



910 



Doors {cojifd) SEC. 

Obstructing street with, 

cl. i8, n. 15, 3106 
Swing out 4500rt 

Drains 

City may construct 

cl. 2, n. I, 3106; cl. 43, 3106, 3151 
Construction under general 

powers cl. 2, 3106 

clerk's warrant to treasurer 

for payment of cost, . .cl.2, 3106 
ordinance for construction, 

cl. 2, 3106 
report of committee concern- 
ine: cl. 2, 3106 



reselution referring construc- 
tion to committee. . . .cl. 2, 3106 

street commissioner superin- 
tends 3074 

street commissioner's report 

concerning cl. 2, 3106 

Plans defective, city liable for 
damages caused thereby, 

n.^34' 3i^''ji 
Private drains, 

cl. 43, n. I, 3106; cl, 51, 3106 

regulation cl. 51, 3106 

Public cl. 43, n. 2, 3106 

Regulations by city of public 

drains cl. 51, 3106, 3151 

of private drains cl. 51, 3106 

Street commissioner superin- 
tends construction 3^74 

Town may build n. i, 3333 

Drainage act of 1891 

Aggreeing to assessment . . . .3221Z'// 
acceptance by city 3221//// 

Appeal from proceedings . . . ."J,22ibb 

costs ■7^22lbb 

entry upon ■^22ibb 

Apportionment of appraisers, 3221Z 
notice of 322i2r 

Assessment of benefits ■^22icc 

collection 322ic:c 

notice of 322irc 

Bids, advertisement for 3221CC 

Bond of contractor 3221CC- 

Certificate of drainage com- 
missioner 3221CC 

Cit}-- may drain and assess ben- 
efits therefor 3221^ 

Collection of benefits 322 icc 

auditor of county may col- 
lect 3221CC 

Committee upon, appointment 32212: 

Commissionerof drainage con- 
structs 3221^^ 

Complaint to collect assess- 
ments 3221CC 

Construction 3221^1?', 3221CC 



Contract for construction 



,322irc 



Drainage act of \S9\{confd)s'E.c. 

Costs on appeal 3221,5^' 

Error maybe corrected on ap- 
peal ^ T^22ibb 

Establishment of drain 3221/;^ 

Notice of assessment y22\dd 

filing petition in circuit 

court 322i(r:f3 

land-owners 3221^* 

order-book, entry upon . . . .3221^^ 

remonstrance, form ■^22\aa 

sufficiency ■^22idd 

Petition 32212: 

signing 32212: 

in circuit court by cit}^ 

32212:, ^22iaa 
Procedure in circuit court . . ,3221(7(7 

in general 32212: 

Reappraisement 3221^^ 

Remonstrance, and form of . .■^22iaa 

Repairs Z'^-'^ff 

Report of appraisers ■^22iaa 

committee and approval. . . 32212- 

drainage commissioner, 

z--^ffsr, 32212- 

surveyor 32212: 

Resolution for survey 32212- 

Trial on appeal 322iZ'i5 

Drays 

City may regulate use. . .cl. 12, 3106 

Driving 

Immoderate, city may prohibit, 

cl. 17, 3106 
town may prohibit cl. 6, 3333 

Duplicate tax list 

City clerk furnishes 3C=7o 

Easement 

Burden, pipes not an additional, 

cl. 28, n. 6, 3106 

railroad in street n, 7, 3161 

sewers in street, . .cl. 43, n. i, 3106 
Avater-works in street, 

cl. 26, n. 7, 3106 

Eaves 

Overhanging, effect, cl. 41, n. 2, 3106 

Education 

See Schools. 
Elections (city) 

Board of elections in city, 3034, 3224 
duties 3046, 3047 

Canvass of votes 3046 

mandamus to compel . . .n. i, 3046 

Certificate of 3095, 3047 

inspectors 3^47 

serves as a commission, n. 2, 3047 
tie vote 3^47 

City clerk notifies officers 

elected 3648 

Clerks of 3039) 4690 

Contest of 47^7 



911 



Elections (city) {confd) sec. 

Councilmen, of 3043 

Electors, who are 3223 

First, after incorporation 3037 

General election law governs, 

304s, 4710;;/ 

Inspector, appointment 3224 

Judges, appointment 3224 

Mandamvis, to compel canvass 

of votes . . .n. i, 3046; n. i, 3047 

to compel action on election 

returns n. i, 3047 

Meals for n. i, 4709 

Members of board of elections, 

■who are n. i , 3046 

New election, order for 3047 

Notice for 3037 

to ofncer of his election 3048 

Oath of election board 3044 

Officers elected at 3043 

qualifications 3222 

Policemen can not electioneer, 3221^ 

Poll list 3046 

Precincts, change of 3224 

size 3224 

Qualifications of voters 3223 

of officers 3222 

Refusal to accept office, penalty, 3049 

Special 4734 

Tally-sheet 3046 

Tie vote, eftect cl. 3, 3047 

certificate of 3047 

Time for 3043 

in large cities 3052; 3053; 3056 

Union of city and town, 

3223; 3226 to 3228 
Vacancy, how and when filled, 

3050; 3053 

Voters, vv'ho are 3223 

Water-works trustees . . . .3265; 3270 
See Incorporation of City. 

Election (town) 

Board of elections, who consti- 
tute 3224 

Certificate of "• 5, 6, 3309 

Clerk of circuit court makes re- 
cord of 3310 

Clerk of 3308 

Contest 4767 

Dissolution of, as to , 3318 

Electors, qualifications 3223 

Failure to file certificate with 

clerk n. 2, 3309 

First, how held 3304 

notice for 3304 

General law governs. . .3224; 4710W 

How conducted 3307 

Inspectors, how appointed, 

3224; 3305 

duties 3307 

;pi'0 tcm 3307 

Judges 3224 



Election (town) {confd) sec. 

Legalized, effect n. i, 3309 

Marshal, how elected 3225 

Notice of 3304 

Oath 3309 

Officers, qualifications 3222 

Polls, opening and closing. . . . 3306 

Precincts changed 3224 

size 3224 

when wards are 3224 

Qualification of voters 3223 

Statement certified, as to. .... . 3309 

Record of result 3310; 3301 

Tie 3309 

Time of holding 3305; 3308 

Treasurer of 3309 

Trustees of 3309 

president of 33^3 

Trustees of schools 4439 

Union of town and city . .3236; 3237 

Voters, qualifications 3223 

Voting place n. 2, 3305c"J 

See Incorporation of Town. 

Elections (general) 

Absence of elector, regulation 

as to 4698<t; 

Adjournment of forbidden .... 4708 

Affidavits, disposition of 4710-^ 

Altering returns •M^'^f 

Arrest of briber 4768c 

elector forbidden 4684 

illegal voter 4703 

Assemblymen (of) cir. elk. cer- 
tifies 4723 

sheriflfs certify, when 4724 

Attorney fee recoverable, when, 4768/ 
Attorney-general, residence of, 

n. 8, 4680 
Auditor of state, residence of, 

n. 8, 4680 

Bail for person arrested 4768c 

Ballot-box, abstracting, a felony, 

4701/ 

breaking open 4768 zc 

color 4695 

construction 4696 

destroying 476S;/;/ 

inspection of 4696 

keys to 4696 

kind 4696 

providing 4696 

seizure 4768/;?/;/ 

Ballots, burning 4701;// 

certificate of nomination, to 

get printed 4703c 

clerk's failure to sign. . . .n. 4,4704 
clerk of circuit court keeps. . 4714 

color 4701 

constitutional amendment, for, 

4700/ 

counting 4705<' 

defective 4706 



912 



Elections igeneral) {co^ifd) sec. 

delivery to wrong person, pen- 
alty 4701^ 

device on 4700c; 4701 

distribution 4701c 

election clerk delivers to voter, 4704 
expense of preparing, paying, 4701c 

folding 4704 

giving out 4701/" 

inducing voter to mark, pen- 
alty 47io<jf 

initials of poll clerk placed 

on 4701/2 

inspector receives from coun- 
ty clerk 4701^ 

delivers to clerk 47-'^3 

kind 4701 

local, printing 4701 

loss 4701/ 

marking n. 5, 4705c 

messenger, sent for 47oi<^ 

mutilated 4705<^ 

name of candidate, Avhen not 

printed 47oo<i 

om.ission of nam.e ....... n. 4, 4701 

opening 4710^ 

opening packages of, 4701c; 47oi_^ 

packages 4701c 

of, local 4701^^ 

paper, State B. printed on. . . 4701 

papers, enveloped with 47i3 

"paster" 4705 

petition to secure printing. . .4700c 

poll clerks open ^~oih 

preparation of 4701 ; 4701 ;3 

by poll clerk for voter . . . .4705^ 

printing 47oo 

Avho attends to 4701 

printer, duties of 4701^^ 

samples 4701/ 

use in booth n. 5, 4704 

sealing in packages. .4701c: 4701^ 

secrecy, violation of 4701// 

showing 4704 

signing by clerk 4701// 

special messenger for 47oiy' 

squares on 47oi 

stamping 47^4 

decisions upon, n. i to 13, 4709(7 

State, printing 4700c; 4701 

title iipon 4700c 

vacancy on, how filled 4701^ 

voter signing more than one 

petition, effect 4700^/ 

Bartering vote ^yGSdd 

Betting on 4685; ^'jGSaa 

with infant as to result 476Sj' 

Blanks prepared 4691 

liability of count}^ for. . . .n. 2, 4679 
Board of, adjournment forbid- 
den 4708 

attendance, prompt 4692 

clerk of 4690 



Elections (general) [confd) sec. 

duties as to township 473^ 

inspector is chairman 4694 

meals for 4709 

oath of 4692 

administered, how 4694 

result, not to state 4707 

vacancy in, how filled 4692 

who are 4688 ; 46S9 

Board of canvassers, certificate 

of 4718 

declaration by 47i8 

duties of 4717 ; and n. i, 4717 

meeting 4715 

otTicers 47i6 

papers, defective 4720 

tie vote 47^9 

who are , 47i5 

Bond for person arrested, 

4768/; 4768 z 

Booths, construction expense 

of . . 4701;? 

kind 4701?/ 

number of voters in at one 

time 4704 

preparation of 4701 w 

Boundaries, countv, for change 

of ( R. S. 1881, § 4208) 

Bribery by candidate 4768.?.? 

clerk, of ( R. S. 18S1 , § 2010) 

inspector, of . . . . (R. S. 18S1, § 2010) 
judge. of (R. S. 18S1, §2010) 

Buying vote 4768rr; 4768.?^ 

Candidate bribing voter 4768^?.? 

recount, mav have 4738 

threatening voter 4768^5 

Canvass of votes, how made . .4709^ 
decisions on n. i to 12, 4709a 

Cards containing instructions 

to voter 4701 ?' 

removing or destroying . . . .47io_^ 

Certificate, board of canvass- 
ers, by 4718 

circuit clerk, by, 4721 ; 4723 to 4726 

election notice, to 4679 

congressman, as to 4728 

contest over election . . n. 5, 4756 

force of n . 1 , 471S 

governor, as to 4729 

judges, of 4712 

lieutenant-governor, as to . . 4729 

representatives, as to 4724 

secretary of state to governor 4727 

senators, of 4724 

toAvnship, of 473^ 

Chairmian of county central 

committee, duty 4700^ 

state central committee, duty, 

4700a 

Challenges, affidavit of elector, 4702 

bribery, on account of 4768/ 

vote, when received 4702 

who may be 47^2 



913 



Elections (general) [cojifd] sec. 

Challengers, appointment .... 4700 

approach to poles 47oo 

number 4703 

pay of 4700 

Chutes 47017/ 

City, governed by general elec- 
tion law 4710:/; 

See Elections (city). 
Clerk of circuit court, ballots 

delivered to 47^3 

ballots delivers to inspectors, 4701c 

bribery of (R. S.1881, § 2010) 

certificates bj-, 4721, 4723 to 4726 

election notice to 4679 

recount, duties as to. .4740 to 4742 
Clerks of election, appointment, 4690 

duties 4701// 

instructs voter 47^5^'' 

sworn in by inspector 4694 

Closing 4697 

proclamation of 4697 

Commission by governor. .... 4722 

not necessary .n.2, 4721 

frir.ia facie evidence .n. i, 4727 

Complaint against bribers 4768c 

Congress, secretary of state cer- 
tifies to 4728 

Constitutional amendments,bal- 

lots for 4710/ 

Contest, affidavit, by v/hom 

made n. i, 4758 

sufficiency. . , n. 2, 4758 

appeal to supreme court .... 4768 

circuit court, to 47^2 

ballots kept, to use in 47^4 

contestor and contestee .... 4743 
county offices, contest as to . . 4758 

appeal to circuit court 4762 

duty of court 47*^3 

commissioners to take tes- 
timony 4766 

costs and fees .n. i, 4765 

notice by auditor to clerk . 4759 
to county commissioners 4760 

to contestee 4760 

subpoenas 4761 

trial by county commis- 
sioners 4761 

voters must testify ....... 4764 

demurrer n. 9, 4758 

fraud n. 4, 4756 ; n. 8, 4757 

ineligible candidate. . . . .n. i, 4757 
injunction not proper . . .n. 5, 4758 
irregularities, when immate- 
rial... 4757 

jury trial , n. 2, 4763 

judgment in 1136 

legislators, contest as to 4747 

cause for 475^ 

clerk's duty in 4753 

depositions in 474^ 

sent to secretary of state, 4753 

58 



Elections (general) {cont'd) sec. 

to proper house 4754 

when read 4755 

justices, meeting and duty 

of ". 4752 

powers of 475© 

motion to dismiss .... n. 3, 4763 

notice to contestee 4749 

vacancies in commission. . 4751 
municipal offices, contest as 

to 4767 

oath of contestee. , n. 3, 4758 

practice, . . . n. 2, 3, 4760 ; n. 3, 4756 

question in n. 2, 4756 

state offices, contest as to ... 4744 

committee to try 474^ 

notice to contestee 4745 

specifications as to 4744 

statement of "• 13? 475^ 

township offices, contest as 

to 4758 

vacancy pending 55^5 

voter may contest 4743 

as a witness n. i, 2, 4764 

Contracts void 4768;/ 

Counting 4705c; 4709^; 

manner of 4710 

mistake in n. i, 4756 

rules for n. 13, 4709.-2 

voting after commencing .. , 471 1 

who may witness . 471 1 

Count}^ board of election, ap- 
pointment 4700^ 

duty to prepare ballots. .... .4700*^ 

paj^ 47001^ 

County election, special, how 

conducted 4710/ 

Day of holding 4678 

Deceiving illiterate voter . . . .4768/'/ 

Defective ballots 4706 

Defrauding voter 4768^'^ 

Deposit of ballot by inspector, 4705c 
Destroying ballots. . . .4701;//; 4710^ 

ballot boxes 4768;/;/ 

poll books 4768;/ ;/; ^^'jioa 

returns 4768^^; 4710^ 

Device on ballots 4700c 

certified to county 470o^- 

Discharge from custody, voter, 

when 4768^- 

Dist'ranchisement of elector. . . 4681 

Domicile defined n. 3, 7, 4680 

Electioneering, officer of elec- 
tion may not 4710/!' 

Elector, disfranchising 4681 

qualifi.cations 46S0 

when does not lose right to 

yote 46S3 

Emplove, refusing, time to vote, 

476S// 

Employment of voter 4703/' 

Entering election room luilaw- 

ful 4710C 



914 



Elections (general) {cont'd) sec. 

Execution against briber 4758;« 

Expenses of, county pays. .n. i, 4735 

False affidavit, penalty 4768.',^ 

Forms, preparation of 4691 

Fraud at special election ^1^^q<l 

by officer 476S<'c 

Free and equal, must be 83 

General, by ballot 94 

when held • -94 ; 4^78 

Giving money for, by candidate, 

unlawful 4768^7 

Governor, certificate of vote 

for 4729 

contest for (R. S. iSSi, § 132) 

member of state board of . . .47001^ 

residence of n. 8, 46S0 

returns for (R. S. iSSi, § 130) 

special, may order 4732 

Habeas corpus to release briber, 4768c 
Hiring voters, illegal . .476SCC, 4768^ 

Holidays 4710;/ 

Ignorant voter, preparing his 

ballot 4705^5 

Illegal votes 4768.V 

Importing voters 4768fffr 

Inducing voter to not vote . . . .4768.<r 

to re-sign petition 4^']6'$>oo 

Ineligible candidate, effect, n. 6, 4678 

Inhabitant, who is n. 2, 46S0 

Injunction, not proper with 

which to contest n. 5, 475S 

Inspector, additional 4689 

administers oaths 4^94 

appointment 4689 

ballots delivered to 47oi.cr 

deposits in ballot-box . , . .4705c 

bribery of (R. S. 18S1, § 2010) 

chairmen of election boards 

are 4694 

duty 4694 

neglecting duty 4701 /(• 

oath as to ballots 47^3 

township trustees are 4688 

Instructions to voters, 4701 / ; n.6, 4704 
Intimidating voter . . 4768Z'// ,• 4768// 

Judges, appointment 4688 ; 4689 

bribery of (R. S. 1881, § 2010) 

certificate of 4712 

disqualification of 46S8 

officers are , . .n. i, 471 :; 

who can not be 4688 

Judgment against briber 4768/" 

amount of 476S/ 

Judicial notice taken of result 

of n. 2, 4678 

Laws of construed liberallv, 

n. II. 4678 
certain of, repealed. .47680; 47681' 
Legislature can not fill an of- 
fice n. 12, 4678 

Lien of judgment against briber, 

476SZ' 



Elections (general) {confd) sec. 

Lieutenant-governor of, 

(R. S. 1881, § 129) 

vacancy- in office of n. 8, 4678 

vote for verified 47^9 

Loaning money, when unla\v- 

ful 4768^ 

Mandamus to compel count, 

n. I, 4721 ; n. i, 4726 

Mariner, disqualified 85 ; 4682 

Meals for election officers 4709 

pay : n. 2, 4709 

Method of voting 4704 

Money, loaning, when unlaw- 
ful 4768^7 

New county, as to, 

(R. S. 1881, §4223) 
transfer of territory, as to, 

(R. S. 1881, § 4229) 
Nominations, acknowledgment 

of certificate of 4700c 

certificate of 4700c 

corrected, may be 47oo/" 

failure to file in time, n. i, 4700/ 

preservation of 4700^ 

time of filing 47oo/ 

convention, petition, eftect. .4700^ 

failure to make n. 4, 4700c 

petition preserved 47oocf? 

publication of 4700// 

failure to make in time, 

n. 2 to 4, 4700/^ 

when not made 4700/ 

refusal to accept 4700/ 

state certifies to county 4700^ 

two parties nominating same 

person n. 5, 4700 

vacancy, how filled 4701^ 

when invalid n. 2, 4700c 

Non-resident voting 4768^ 

Notice by sherilf 4679 

failure to giye n. 3, 4679 

proof of posting up n.6, 4679 

Oath of board 4692 

administered, how 4693 

challenged person, of, 4696(7, 4702 
failure of officer to take, -ef- 
fect n. I, 4692 

freeholder, of 4702 

inspector, of 4694, 4713 

Object of act of 18S9 n. 2, 4704 

Officers of, altering returns, 4768^^ 
appointment. . .4688 and n. 2, 4688 

destroying returns 4768^ 

disqualification, effect of, n. 4, 46S8 

duty of inspector 4694 

electioneering forbidden . . . .4710/^ 

false entry, making of 4768c(? 

tallies, making 476S, ^"jSSee 

from different political par- 
ties n. 3, 46S8 

ineligibility, en'ect of . . .n. 6, 4678 
influencing voter 4678// /^ 



915 



Elections (general) {confd) sec. 

legal vote, refusing 47^8^^ 

marking ballot 4678// 

neglect of dutj 4710/ 

opening ticket 467S// 

pay of 4730 

qiialifications 4689 

related to candidate 4688 

removal for cause 4688 

tampering Avith ballots 4768^^ 

township trustee is 468S 

voters, -when may select .... 4689 

Opening polls in citj,when. . . 4697 

notice of 4697, 4699 

petition to open at six a. m. 4697 
proclamation of 4697 

Paster ballot 4705 

Perj ury in 4703'^ 

Petition to secure printing of 

ballots 4700C 

withdrawing names from, 

n. 3, 4700C 

Petition to open polls at six a. 

m 4697 

Place of voting 4686 

Pleading, criminal, as to, 

(R. S.1881, § 1749) 

Polls, vacancy around 47oo 

Avho may approach 47oo 

Poll-books and forms 4691 

destroying or losing 4768^^ 

false entries on A^'jd'^ce 

Poll-book holder, appointment 

of 4700 

approaches polls 47oo 

pay 4700 

Precincts, boundaries changed, 4687 
elector must vote in his own, 4698 

establishment 4686 

in city and town n. 2, 4686 

notice of change made 4687 

re-adjustment n. 3, 4687 

size , 

Proclamation of opening polls, 

4697, 4699 
of closing polls 4697 

Purchasing votes 4768^ 

Railroad aid, see Railroads. 

Re count, candidate may have, 4738 
adjournment of commission- 
ers 4742 

ballots kept 474- 

certificate of 474^ 

circuit clerk, duty of, 4740 to 4742 

commissioners for 4740 

order of court for 4739 

pay of commissioners 4742 

petition for 4739 

witnesses to 4740 

Refusing to receive vote, pen- 
alty ^1^^g'ff 

Registration of certain voters, 4698^ 
validity of law requiring, n. i , 4698a 



Elections (general) {cont'd) sec. 

Repeal of laws 4710(9 

Residence not lost, when 4683 

losing n. 4, 46S0 

Result announcing, illegal 

when 4707 

Returns, altering 4768jf 

destroying 4768^ 

Revealing how elector voted, 

4710^, 4710/ 
Rooms for, preparation of . , . .4701;/ 

kind 4701;/ 

Rules of evidence 47686; 

Sale of school lands, see Schools. 
School officers, as to, see Schools. 

Seamen 85, 4682 

Secretary of state certifies, when 

4727 

Seizing ballot box 4768;// ;« 

Selling vote at ^'jG'&dd 

county seat removal, for. . .4768^;' 

signature to petition 4^']6^pp 

railroad aid, for 4768;-^ 

Senators, state, certificate of . . 4724 
Sheriffs of election, appoint- 
ment 470Q 

arrests, make 4700 

duties 4700 

how chosen 47oo 

pay of 4700 

powers 4700 

Soldiers disqualified 85; 4682 

Soliciting illegal vote 4768.'7rt 

Special, conducted how 4734 

congressional vacancy 473i 

governor may order 473^ 

legislative vacancjf 473^ 

notice by sheriff 4733 

tie vote 4731 

vacancy, to fill 473^ 

when held 473^ 

Stamps, distribution of , . .4701c 

payment of 470if 

preparation of 4701c 

removal from booth 4705^ 

voter delivers to clerk 47^4 

Stamping ballot 47^4 

State board of election commis- 
sioners, appointment 4700a 

compensation of 4700a 

duties 4700a 

Stay ofjudgment against briber, 476S/ 

Student, right to vote n. 6, 46S0 

Suit to recover penalty 4768/* 

Tally-papers and certificates . . 4691 

destroj-ing or losing 4768/)^' 

Ticket, opening or marking . . .4768/ 

false, furnishing 4768/ 

removing or destroying 4768CC 

Tie vote 4719 

validity of, law concerning, 

n. I, 4710 
Time of holding 4(^^78 



gi6 



Elections (general) (confd) sec. 

if held on wrong day, void, 

n. 10, 467S 
Toll, voter does not pay, 

(R. S:i88i, § 2895) 

Town election, how held 4710W 

Township, certificate of 4736 

offices filled at 4735 

rights of person elected 4737 

special 47io^ 

votes, how counted 473^ 

when held 95 ; 4735 

Township trustees, inspectors 

are 4688 

Transcript in action against 

briber 476S/; 476S/ 

Treasurer of state, residence of, 

n. 8, 4680 

Trial of briber 4768// 

United States supervisors, n. 2, 471 1 
Vacancy, congressional, to fill, 4731 

filling n. 4, 4679 

legislative, to fill 4731 

legislature can not fill. ,n. 12, 4678 
pending contest, how filled, 

(R. S.1S81, § 5565) 

resignation creates n. 5, 467S 

when exists n. 3 to 9, 467S 

v\-hen filled n. 3, 4, 4678 

Void, when n. 10, 467S 

Voter, arrest, privileged from, 

93, 46S4 
causing tore-sign petition, etc., , 

4768(9^ 
challenged, who may be .... 4702 

defrauding 4768Z'/v' 

furnishing wrong ticket to, 4768// 

hiring to vote or not 476S^r 

importing illegal 4768^7^7 

influencing by officer 4768// Z' 

intimidating 476S// 

marines disqualified as . . .85, 4682 

name announced 47^4 

entered 4704 

numbered 4704 

oath, when challenged 47o- 

officer menacing 4768//// 

persuading 4768/'/' 

qualifications of 84, 4680 

registration of 95 ; 469S.7 

residence efi"ecting 86 

must vote at 4698 

seamen disqualified as ... .85, 4682 
soldiers disqualified as. . . .85, 46S2 
violence or threats, to influ- 
ence 476S// 

Voting illegally 476SA 

more than once . . .47685/;; 476S$-(7 

non-resident 4768- 

wrong precinct, in 47681- 

When held 467S 

Where to vote 469S 

Witness to count 471 1 



Elections (genera!) (cont'd) sec. 

may protest 471 1 

refusing to admit 471 1 

re-count, to 47 40 

Use of money by candidate . . .4768/ 
Using violence, threats or re- 
straints 4768// 

Warrant, issued when /^'j68d 

Electric light 

Assessment of damages because 

of poles in street 3229^ 

Constitutionality of law, n. i, 3229^ 
Grant of use of street, 3229^^; 3229^ 

Poles in street n. 12, 66; ^22gd 

Use 3229c 

Wires may be laid in street, n. 12, 66 

Elevators 

ISIay be regulated by city, n. 5, 3155 

Embezzlement 

Clerk by filling out blank war- 
rants n. 5, 3068 

New bonds in place of old em- 
bezzled, may be issued, n. i, 3114 

Sinking fund misapplied 3126c 

Eminent domain 

Annexation of territory is not 

exercising power of, . .n. 7, 3195 
Assessment of damages must 

first be m.ade n. 23, 66 

Canal n. i, 66 

Cemeteries n. 18, 66 

Cisterns in street n. 12, 66 

Compensation a judicial ques- 
tion n. 9, 66 

Constitutionality of act author- 
izing n. 19, 66 

County seat n. i, 66 

Damages, must be first paid, n. i, 66 

ascertainment n. 3, 66 

consequential n. i, 66 

measure n. 20, 24, 66 

tender n. 4, 66 

Ditch n. I, 66 

Electric wires n. 12, 66 

Factory n. i, 66 

Franchise seized n. i, 66 

Gas pipes n. 12, 66 

HighAvay n. 2, 66 

Hydraulic v.-orks n. i, 66 

Markets n. 14, 66 

Mills n. I, 66 

Monuments ,n. 12, 66 

Parks n. 15, 66 

Plank roads n. i, 66 

Pounds n. 13, 66 

Private use n. 2, 66 

Procedure n. 19 to 23, 66 

failure of legislature to pro- 
vide n. 22, 66 

Purposes for which may be ex- 
ercised n. 10, 66 



917 



Eminent donnain {confd) sec. 

Railroad n. i, 13, 66 

Right to exercise n. 6, 66 

Sciaool- houses n. 17, 66 

Sewers . . .n, 12, 66; cl. 43, n. 5, 3106 
State need not paj before tak- 
ing 66 

Statutor}^ n. 12, 66 

Statute of limitations n. 19, 66 

Street, opening and vacation, 

n. 4, 7, 66 

Telegraph n. i, 13, 66 

Telephone n. i, 13. 66 

Turnpike n. i , 66 

Tender of damages must be 

made before seizure, n. i, 4, 7, 66 
must be in legal tender 

money n. 4, 66 

state need not first make. ... 66 
Use to which may be put, 

n. 8 to II, 3167 
Validity of law authorizing, n. 19, 66 

Water-works n. i, 16, 66 

pipes n. 12, 66 

See Damages. 

Engine house 

■ City may build cl. 33, 3106 

Execution, can not be sold upon, 

n.4, 3200 

Town may build 3343 

bonds for, may issue 3343 

how bonds sold 3344 

tax for, may levy 3345 

Engineer 

See Civil Engineer and Fire 
Department. 

Escape 

Effect on judgment n. i, 3067 

Offenders may be re-taken, 

n. 18, 3076 

Escheats 

Escheated land belongs to 

school fund 183 

Estimates 

Civil engineer makes 3073 

Estoppel 

Acquiescence in street im- 
provement will be, 
n. 14, 21, 3164; n. 8, 3165; 

n- 3, 3357 

C hange of grade n. 6, 3073 

City appropriating land is 

estopped to deny title, n. 2, 3176 

may be n. 21, 3106 

may be to enforce penal or- 
dinance n. 16, 3066 

Failure to object to street im- 
provement, 

n-3. 3357; n- i3..2i,3i64 
Water-works company using 
water of stream, 

cl. 26, n. 10, 3106 



Estray fund sec. 

Belongs to schools n. 4, 183 

See Schools. 

Evidence 

Canal records may be used as, 

n. 2 to 4, 3068 
Copies made by clerk of city 

are n. i , 3068 

Grade, how proved n. 6, 3073 

JVunc pro tunc entry is. . . .n. i, 3068 
Parol to show acts of council, 

n. I, 3068 
Printed city ordinances are . . . 3100 

Excavation 

Holes in street cl. 18, n. 9, 3106 

Execution 

Against principal and replevin 

bail 3067 

Engine house can not be sold 

upon n.4, 3200 

Exemption, firemen's pension 

is 3203^ 

Real estate of city can not be 

sold upon n. i, 31 11 

Sale upon 3067 

Stay of in town 3347 

in city 3067; 3217 

Water-works can not be sold 

upon cl. 26, n, 9, 3106 

Executor 

Taxing in city or town 3264 

See Taxation. 

Exemption 

Engine house is from sale, n. 4, 3200 
Fireman's pension is exempt 

from sale on execution . . .3203;' 
Realty of city or town is from 

sale .....n. 1,3111 

See Taxation, 

Exhibition 

City may regulate. cl. 15, 3106 

fine arts cl. 16, 3106 

musical, on street cl. i, 3106 

shows cl. 15, 3106 

theaters cl. 15, 3106 

Expulsion 

Aldermen may be 3053i 3101 

Councilmen may be 3101 

Procedure n. i to 7, 3100 

Fairs 

City may purchase real estate 

for cl. 45. 3106 

Fast driving 

City may prohibit, 

els. 17 and 19, 3106 
Town may prohibit n. i, 3327 



Fees SEC. 

Attorney for city, 

3078 and n. I, 2, 3078 
when fine worked out . . n. 5, 3067 

Civil engineer n. 4, 3073^ 

Clerk of circuit court for filing 

election statement 3035 

Clerk of city for copies 3068 

Constable 3077^ 

P erries 3103 

General law required to create, 118 
Judge of city must relinquish, 3063 

Justice of the peace 3063CZ 

Marshal of city 3077, 3077^ 

Mayor . , .3063 and n. 2, 3063 ; 3063^ 

pays to city treasurer 3063 

release, form 3063 

relinquishes 3063 

Treasurer of city, 3094 and n. i, 3094 
See Taxation. 

Females 

Assisting in making an arrest, 

n. 8, 3076 
Imprisonment in home for 

friendless women 6240 

Sale of property on precept. . . 3165 

School officers may be 454^ 

Working out fine, 3067 and n. i, 3067 

Fences 

Damages for taking n, 20, 66 

Partition, regulated by city, 

cl. 41, n. I, 3106 

Ferries 

Abandonment n. 3, 3103 

Board of county commissioners 

usually control n. 3, 3103 

Charging for use of wharf, 

cl. 34» n. 2, 3106 

City may control 3103 

Fees and charges 3103 

License 3103 ^i^d n.3, 3103 

Non-user n. 3, 3103 

Power of city to regulate n. 2, 3103 
Town may not damage 333S 

Filth 

Cleaning up in city cl. 10, 3106 

Finances 

Council controls 3106 

Fine arts 

Exhibition under cl. 16, 3106 

Fines 

Actions for 3066 

City may impose 3155 

Driving on sidewalk in town, 

3361 ; 3362 
Home for friendless women, 

when gets 6243 

gambling, fines, gets 6244 

Limit in oity 31 :;^ 

Mayor pays to city treasurer. . 3062 



Fines {confd) SEC. 

Paid into city treasury 3062 

Schools get 183 

Town may impose 334^ 

limit 3346 

remitting 334^ 

See Penalties. 

Fires 

Arrests at, by chief of fire de- ' 

partment . , . .3201 and n. 2, 3201 

Buildings, city or town may de- 
stroy to prevent fires, 

3203 and n. i, 3203 
payment for 3203 

Combustibles removed . , .n. 13, 3106 

Dangerous material, keeping, 
town may regulate cl. 3, 3333 

Destruction of buildings at com- 
mon law n. I, 3203 

Failure to extinguish, city not 

liable,cl.26, n.4,9, 3106; n. 1,3200 

Inhabitants of town may be 
compelled to extinguish, 

cl. 3. 3333 
Limit, city may prescribe, cl. 32, 3106 

town may prescribe 3335 

Out fires, town may prevent, 

cl. 3, 3333 

Prevention of 3^99 

Preventing by destruction of 
building, 

cl.32, n. I, 3106; n. I, 3203 

Regulations to prevent 3199 

Scuttles in roof, 3^99 

Straw, storage in large quanti- 
ties prevented note, 3192 

Town may prevent . .cl. 3, n. 2, 3333 

Fire-arms 

City may regulate use of, cl. 3, 3106 
Town may regulate use of, cl.6, 3333 

Fire apparatus 

Bequest to city to purchase, n. 3, 3200 

City may protect cl. 30, 3106 

Contract for n. 2, 3200 

Purchase by city or town, n. 2, 3200 

of house cl. 33, 3106 

Regulation of cl. 30, 3106 

Sale on execution n. 4, 3200 

Town ma purchase, 

cl. 3, n. I, 3333; n. 2, 3342 
Voluntary association, city may 

purchase for n. 3, 3200 

Fire board 

Illegal n. i, 3054; n. i, 3201 

Fire company 

Hook and ladder 3200 

Liability of city for n. i, 3200 

Organization in city 3200 

^ town cl. 3, 3333 

Voluntary, city may purchase 

apparatus for n. 3, 3200 



919 



Fire department sec. 

Act of 1SS9 invalid n. 2, 3043 

Apparatus for 3200 

Arrest of person refusing to as- 
sist n. 2, 3201 

Bequest to city n. 3, 3200 

Chief, appointment 319S 

assistants 3201 ; 3098 

authority can not be limited, 

n. I, 3201 ; 3054 

duties 3201 

powers 3201 

term 3198 

Councilmen members of 319S 

Failure to have, citj not liable 

for loss by fires n. 4, 3106 

Fire board, illegal. . .3054; n. i, 3201 

Fire companies 3200 

Fire patrol, control of 377S 

House for engines, city may 

purchase cl. 33, 3106 

Hook and ladder companies . . 3200 

Inspection of buildings 3798 

Liability of city for acts. . . .n. i, 3200 

Privileges of firemen 3-02 

Rules and regulations prescrib- 
ed by council 3200 

Voluntary association, city may 
purchase apparatus for, n. 3, 3200 

Fire engines 

City may protect cl. 30, 3106 

purchase, 

n. 13, 3106; n. I, 3155; n. 3, 3200 

regulate cl. 38, 3106 

Town may purchase, cl. 3, n. i, 3333 

Fire limits 

City may establish, 

cl. 32, 3106; n. 4, 3155 

Forms cl. 32, 3106 

Ordinance how construed, 

cl.32, n. I, 3106 
Town may establish, 

cl. 3, n. 4, 3333; 3335 

Firemen 

City liable for injury to, by 
reason of defective street, 

n. 2, 3202; n. 18, 3161 
Exemption from jury and mili- 
tia duty 3202 ; 3202^ 

city tax 3202c 

military duty, exempt from. . 3202 
Injury to, by reason of defective 

street n. 18, 3161 ; n. 2, 3202 

Pay n. i, 3202): 

Pension fund of exempt from 

seizure 3203;' 

Privileges 3202 

Fireman's insurance 

Act of 1891, how construed. . . .3203.9 
Assessment of firemen for fund, 3203^- 

Beneficiaries 3203 w; 3203/ 

Board of fund S^oyi 



Fireman's insur'nce (con'd) sec. 

election 32035 

Deficiency in fund 3203?? 

Election of trustees 3203/ 

Examination of firemen 32037;? 

Exemption of fund from seizure, 

3203?- 

Fines paid into fund 3203/ 

Forms, see Forms. 

Payment of fund to trustees. . .3203/ 

Pension fund 3203c 

Pensions, how paid 3203^ 

rate 32030 

President of board, how elected, 

3203/ 
Report, board reports of fire- 
men to trustees. . . .3203/; 3203^ 
of foreign insurance compa- 
nies 3203a 

of taxes collected 3203// 

of trustees 3203/ 

penalty for failure to report, 3203^ 
Revoking license of foreign in- 
surance company 3203Z1 

Secretary, election of 3203/ 

Tax on foreign insurance com- 
panies 3203^ 

Fire patrol 

Appointment and control 3778 

Fire wardens 

Appointed by city council .... 3198 

town trustees, els. 3, 10, 3333; 3329 

member cl. 3, 3333 

Councilmen are ex officio 3198 

Powers in city 3198 

in town els. 3, 10,3333 

Town trustees are 3329 

Fire-works 

City may prohibit cl. 3, 3106 

Town may prohibit. . . .els. 3, 6, 3333 

Fish ' 

Sales of, regulated by city, cl. 29, 3106 

Flagmen 

Railroad may be required to 

keep cl. 42, n. 2, 3106 

Forestalling 

City may prevent cl. 29, 3106 

Forfeitures 

Action by city to recover 3066 

Belong to school fund 1S3 

Forms 

Adoption of general law by old 

city \ 3039 

Affidavit denying publication 

of ordinance 3064 

for driving on sidewalk 3362 

for issuance of bonds 31 19 

Appeal bond, from judgment. . 3067 
survey ,,,,,,,,,,,,,,,,,,... 3073<? 



920 



Forms [coufd) sec. 

Appointment of officer 3050^ 

Annexation by city, approval 

of plat 3196 

consent of land-owner 3196 

notice of proceedings 3196 

order-book entry of proceed- 
ings _ 3197 

resolution of annexation, 

3195. 3196 
Annexation of city and town, 

agreement 3234 

election notice 3235 

election certificate 3238 

resolution of consolidation. . 3238 

Bid for sevrer cl. 43, 3106 

Bond, affidavit for issuance ... 31 19 

approval 3095 

contractor's cl. 43, 3106 

coupon , 3119 

form 31 19 

journal entry authorizing. . . 31 19 

official 3095 

ordinance authorizing issu- 
ance.. 3095 

request For affidavit 31 19 

to state to secure arms 3227 

Breaking quorum, indictment 

for 3097^ 

Cemetery, deed to city 3286 

acceptance of deed 3287 

notice of filing petition 3286 

order for deed 3286 

petition for deed 3286 

petition for removal of dead, 3290 

Clerk's monthly report 3099 

Commitments 3066, 3067 

Court, creating city court . . . , , 3204 

Coupon 3119 

Complaint, failure to accept 

election 3049 

failure to serve on election 

board ■. . 3034 

indorsement upon 3066 

on town ordinance 3347 

to collect drain assessment, 3221CC 
to collect street assessment, 

3165^', 3360, 3366 

to recover penalty 3066 

Deed of city 31 13 

to city 3286 

Deputy, appointment of, ap- 
proved 3043 

Disannexation of territory, ac- 
ceptance by land-owner . . 3248 

notice of proceedings 3247 

order on petition 3247 

petition 3248 

resolutions upon 3247, 3248 

Dissolution of city, order for. . 3130 

petition for 3130 

summons upon 3130 

Dissolution of town, forms 3318 



Forms {cont'd) sec. 
Docket, entry of trial . . . .3066, 3347 
transfer of to justice of peace, 3066 
Drainage by city, acceptance 
of assessment by land-own- 
ers 3221//// 

appeal from assessment. . , .i22\hh 
appointment of appraisers . .32212: 

assessment 3221CC 

bond of contractor 3221CC 

complaint on assessment , . .3221CC 

contract 3221CC 

error corrected '^22\hh 

journal entry of, approval, 

3221? ; cl. 2, 3106 
motion for re-assessment . .32211^^ 
notice of appointment, 

3221Z, 3221a 
notice of assessment, 

3221CC, ^22idd 
notice of filing petition . . . .2,22iaa 

notice to land-owners 32212: 

notice of letting contract . . .3221CC 

order-book entry T^22iaa 

ordinance for drain . . . .cl. 2, 3106 

petition to circuit court 3221^ 

remonstrance 322i«« 

report of committee, 

3221Z, 3221^0, 2,22iaa 
report of street commission- 
er , cl. 2, 3106 

resolution for survey. . .cl. 2, 3106 

survey 32212: 

trial and establishment . . . .3221^^ 
Election, certificate of, 

3095,3047,3048, 331 1 
certificate of inspectors, 3047, 3310 
certificate of town inspectors, 3310 

certificate of tie vote 3047 

declaration of result 3047 

election of city officers 3098 

election of town officers .... 3309 
notice to officer of his elec- 
tion 3048 

notice for first city election . 3037 
notice of special election . . . 3047 

notice of town election 3037 

notice to fill vacancy 3043 

notice to inspectors of ap- 
pointment 3048 

sinking fund commissioners, 3126^ 
special election ordered .... 3047 

tie vote, certificate of 3047 

tie vote, notice of election . . . 3047 
tie vote, order for new elec- 
tion 3047 

vacancy in office of council- 
men 3043 

Execution 3067 

levy of 3067 

Firemen's insurance, certifi- 
cate of election 3203^? 

election notice 3203^ 



921 



Forms {confd) sec. 

election return 3203^? 

oath 32036' 

Fire limits cl. 32, 3106 

Gas, resolution to light street, 

cl.28, 3106 

Grade ordinance 335^, 3073 

acceptance of plan 3073 

ordered 3073 

report of plan 3073 

Incorporation of city, affidavit 

showing result of election, 3035 
appointment of election 

board 3033, 3034 

approval of marshal's ap- 
pointments 3031 

ballot, form 3035 

census 3032 

complaint against officer. .. . 3034 

journal entry of 3035 

journal entry on petition. . . . 3031 
marshal's census return .... 3033 

notice of election 3033 

old city adopting general 

law 3039 

order for an election . , .3033, 3031 

order for census 3031 

order for first city election . . 3037 

petition for election 3031 

plea attacking incorporation, 3036 
ratification of marshal's ap- 
pointment 3032 

return of result of election. . 3035 

wards 3037 

warrant to town marshal to 
take census 3031 

Incorporation of town, affidavit 

of posting notice 3296 

notice of filing petition 3296 

oath 3300 

order incorporating 3201 

petition 3296 

return of result of election. . . . 3301 

Justice of the peace, appoint- 
ment of 3347'^ 

assessment roll 3i5i<^ 

Levee, estimate 3151^ 

notice to commissioners, . . .3151a 

notice for contract , •3151'^ 

notice, by clerk 3151'^ 

notice of appeal 3151'^ 

order for estimate of cost ..3151a 

ordinanceestablishing 3151^'^ 

report of commissioners . . . .3151'^' 
resolution of reference 3151'' 

License, dog 306S 

general 3068 

market 3068 

Marshal's census return 3032 

return on warrant 3066 

sale 3067 

Meetings of council, resolution 

fixing time for 3096 



Forms {co^ifd) sec. 

Mittimus 3067 

Notice, abatement of nuisance, 

cl. 35, 3106 
change of ward boundaries. .3038a 

nuisance cl. 35, 3106 

sale of bonds 3119 

to holders of city orders. . . . 3082 
Nuisance, notice to abate, cl. 35, 3106 

Oath, official 3049, 3095 

Officer, removal of 3101 

Order of business 3096 

Ordinance, appropriation 3105 

board of health, establishing, 

cl.35, 3106 
bonds, authorizing issue of. . 3095 

emergency clause 3100 

enacting clause 3100 

publication clause 3100 

salary 3105 

street railwaj' 4^54 

Parks, acceptance of report. . . .3292^? 

appeal bond 32920 

appointment of commission- 
ers 3292/ 

certificate of appointment. . .3292/ 

commissioner's report 3292 

notice to land-owners . , 3292/ 

oath of witness 3292 w 

oath of commissioners 3292/ 

report of commissioners. . . ,3292?^ 
resolution of appropriations. 3292/ 

transcript 32920 

Park commissioners, bond . . . .3292/* 

election 3292^ 

notice to 3292.? 

oath 3292^? 

report 3292.V 

vouchers 3292JV 

Petition to sell square. . . .cl.48, 3106 

Plat, approval 3253^ 

acknowledgment 337^ 

affidavit to 3391 

clerk's certificate 3253^ 

order adopting 339i 

petition 3253<z 

reference to committee 3253^ 

report and adoption 3253^ 

President/ro tempore^ appoint- 
ment of 3096 

Public square, sale of. . . .cl.48, 3106 

Quietus 30S0 

Railroad, election for aid to. . . 4089 

petition to aid , fo8S 

street-railway ordinance. ... 4154 

Real estate, sale by city V-^Z 

Receipt by clerk 30S0 

for cancelled bonds 30S3 

for license fee 3322 

Recognizance 3066 

Register of orders 3069 

of receipts 3069 

of tax sale 3092 



922 



Forms {cont'd) sec. 

Release of fees by mayor 3063 

Report, clerk's monthly 3069 

drainage commissioners. . .Z'^'2.igg 

of firemen, number 3203/^ 

maj-or's 3062 

street commissioner's 3074 

taxes, for firemen's insurance,3203/^ 

Sewer {city). 

apportionment of cost. .cl. 43, 3106 
notice to contractors. . cl.43, 3106 
ordinance cl. 43, 3106 

Sewer {tozvn). 

assessment 3397 

appointment of appraisers .. 3393 
complaint to collect assess- 
ment 3400 

notice by treasurer 3398 

report 3393 

Shade-tree ordinance 3229 

cutting, indictment 3229a 

injuring, indictment 3229a 

Sidewalk, affidavit for driving 

upon 3362 

Sinking fund commissioner's 

bond 3126^ 

certificate of election 31261^ 

election 3126^^ 

oath 3126)^ 

report 31 26c 

report of treasurer 3126^/ 

Square, sale of cl. 48, 3106 

Street improvement {general 
law for citv). 

acceptance of bid 3162 

advertisement for bids 3162 

affidavit for precept 3165 

appeal bond 3165 

bid, and acceptance 3162 

bond for appeal 3165 

bond with bid 3162 

complaint to collect assess- 
ment 3165a 

contract 3162 

deed on sale 3165 

estimate of cost 3073 

estimate of work performed, 3164 
estimate, copy of, by clerk . . 3164 
estimate, resolution allowing, 3164 
notice of issuance of precept, 3165 

notice of sale under 3165 

ordinance ordering 3162 

petition for 3162 

petition for passage of ordi- 
nance 3162 

precept 3165 

precept, order for 3165 

precept, notice of issuance . . 3165 
precept, notice of sale under, 3165 

precept, certificate of 3165 

remonstrance 3^62 

transcript on appeal 3165 

Street improvement {Act of ISO 1). 



Forms {cojtfd) sec. 

acceptance of agreement. . . .3292^ 
agreement of land-owner, 

waiver 3292^ 

alley ordinance 3292^ 

asphalt ordinance 3292^ 

assessment 3292/ 

bid , 3292a 

bond 3292/^ 

bond ordinance 3292// 

coupon 3292// 

declaratory resolution 3292^ 

estimate, final 3292/" 

estimate referred to commit- 
tee 3292^ 

estimate, acceptance of 3292^ 

estimate, report upon 3292^ 

estimate, objections to 3292^ 

estimate, notice of reference, 3292^ 
estimate placed on tax dupli- 
cate 3292^ 

estimate, resolution 3292^ 

gutter and sidewalk ordi- 
nance 3292*5 

land-owners' objections . . . .3292^ 
notice of intent to improve, 3292^ 
notice of reference of esti- 
mate 3292^ 

order referring report 3292^ 

petition for 3292a 

sidewalk and gutter ordi- 
nance 32923 

sidewalk and street ordi- 
nance 3292*5 

street and sidevvaikordinance,32923 

tax duplicate 3292/ 

Street improvement {tozv7i). 

advertisement for bids 33^4 

bid 3359 

bond 3359 

contract 3359 

complaints to collect cost, 

3360; 3366 

estimate 3366 

ordinance for 33^3; 3364 

petition for street 33^3 ; 3364 

petition ibr sidewalk. . .3363; 3364 

report of marshal 3359 

working upon, order for .... 3367 
Street opening [city). 

appeal bond 3180 

answer on appeal 3180 

appointment of commission- 
ers 3166; 3167 

appropriation, resolutions for, 3174 
certificate of appointment. , . 3166 

claim for damages 3169 

judgment 3180 

notice 3180 

notice of benefits assessed .. . 3177 
notice to city attorney, 3183; 3182 
notice of clerk to commis- 
sioners 3.173 



923 



Forms {confd) sec. 

notice of olerk to land-owners, 3174 
notice of commissioners to 

court 3173 

notice to guardian 31 73 

notice to non-residents 31S3 

notice to unknown owners . . 31S3 

oath of commissioners 3166 

protest of land-owner 3168 

report of committee 3167 

report of commissioners .... 3168 

report of damages 3171 

report on appropriation .... 3171 
report referred back to com- 
missioners 3174 

report on re-assessment 3i74 

resolution of expediency. . . . 3167 
resolution of appropriation. . 3174 

subpoena 3269 

transcript 3180 

treasurer's record 3^77 

verdict 3180 

Street opening {toxvn). 

petitions for 33^8 

Street vacation {city). 

agreement to change 3190 

board of petitioners 3184 

journal entry on agreement, 3190 

notice to land-owners 3185 

notice to non-residents 3^83 

notice to unknown land-own- 
ers 3183 

petition 3184 

report of city commissioners, 3186 
resolution adopting report . . 3187 
resolution of vacation . .3184, 3187 

Street vacation {toxvn). 

consent to vacation 33^2 

notice of filing petition 3379 

order for 3380 

petition for 3379, 3380 

Street railway ordinance 4154 

Subpcena 3066 

Survey, adoption of 3249, 3293 

affidavit to town survey .... 3295 

appeal bond 3073^ 

order for 3249 

Tax certificate of sale 3091 

installment resolution 3i6o« 

levy 3157 

warrant for city 3070 

warrant for town 3350 

Town, appointment of officers, 3312 
complaint on ordinance .... 3347 
name, petition to change . . . 3384 

name, notice of petition 3384 

name, order changing 33S4 

oath of officer 33io 

receipt of license fee 3322 

receipts and expenditures . . 3323 

treasurer'ssettlement 3322 

vacation 33S3 

Transcript, caption 3068 



Forms {confd) sec. 

certificates to 3067, 3068 

Treasurer's extra bond 3345 

monthly report 3083 

Venire 3066 

Ward boundaries 3037, 3038cz 

petition for new 3088 

Warrant on city treasurer .... 3069 

Warrant for violation of ordi- 
nance 3066, 3347 

for collection of taxes . .3070, 3350 

Water- v/orks {city). 

acceptance of commissioner's 

report 3269 

appeal bond 3269 

appointment of appraisers , . 3266 

appropriation 3266 

election notice 3265 

election order 3265 

election return 3265 

notice to commissioners .... 3266 

notice of election 3265 

notice to land-owner 3266 

oath of commissioners 3266 

order for an election 3265 

ordinance establishing board, 3270 

petition for an election 3265 

report of commissioners .... 3267 

Working on streets, town or- 
der for 3367 

Fowls 

Running at large. ..... .cl. 21, 3106 

Free gravel roads 

Law applies to city and town, 

n. 3, 3161 

Freshets 

City must provide for n. 9, 3106 

Fuel 

City may regulate sale of, cl.31, 3106 
Town provides for schools, 

cl. 17, 3333 
Fundmg 
City having debt of $30,000 and 

over 3125 

tax levy 3126 

City of 15,000 voters 3116 to 3119 

limit of debt 31 19 

City of less than 16,000 voters, 3230 
City with 16,000 voters, 3120 to 3124 

limit 3121 

limit of tax levy 3122 

Town of less than 16,000 voters, 3230 

Gambling 

Fines and recognizance forfeit- 
ed, where paid 6244, 6245 

Houses suppressed cl. 9, 3106 

Instruments of destroyed, .cl. 9, 3106 

Minors cl. 14, n. 2, 3106 

Prohibited .... n. 5, 3155, cl. 9, 3106 

Town may prohibit cl. 6, 3333 

What is . , cl. 9, n, I, 3106 



924 



Games sec. 

Regulation by council . . .cl. 14, 3106 
by town cl. 7. 3333 

Garbage 

removal 3226; cl. 22, n. 2, 3106 

contract for 3226 

Garden 

Dedication cl. 45, n. 4, 3106 

Gas 

City may build. . . .cl. 2S. 3106 ; 3162 
Contract concerning, 

cl. 28, n. 3, 3106 
Cost can not be assessed upon 

adjacent lot . . . ,cl. 28, n. 4, 3106 
Exclusive grant of use of 

streets cl. 28, n. 5, 3106 

Lighting streets of city. .cl. 28, 3106 

of town 3336 

Monopoly cl. 28, n. 5, 3106 

Natural gas regulations 3229// 

Negligence, city liable for, 

cl. 28, n. 8, 3106 
Pipes may be laid in street, 

n. 12,66, 3110: 3110a; n. 5, 3328 
burden on easement, is not, 

cl. 28, n. 6, 3106 
consent of city or town neces- 
sary cl. 28, n. 7, 3106 

natural gas pipes in street, 

cl. 28, n. 9, 3106 
pipes beyond city limits . . . .3110^ 
Resolution to light city Avith 

gas cl. 28, 3106 

Tax for lighting streets in town, 3336 
Works, city may build. . .cl. 28, 3106 

Gates 

Damages for taking n. 20, 66 

Railroad may be required to 

keep cl. 42, n. 2, 3106 

General welfare clause 

Animals at large, may restrain, 

^•4-3155 
Assault and batterv, prohibit- 

^ '^S \......n.5,3i55 

i3aw-ay houses, suppressing, n. 3, 3155 
Buildings, A^hen dangerous 

n.i. 3, 3155 
Cruelty to animals, prohibiting, 

n.4, 3155 
Dangerous buildings . . ,n. i, 3, 31 1^5 
Distillery slops, regulating sale 

^, of •••; n- 3^ 3155 

i:.levators, regulating n.^, 31^:5 

Fire limits n.4, 3155 

Fire-engine n. i. 31V:; 

Gambling houses n. :;, 31 V; 

Gunpowder n. i, 315:5 

Health n. 2, 3155 

Hospitals n. i, 3155 

House of ill-fame n. 5, 3155 



General welfare clause 

{co7it'd) SEC. 

Implied povrers i^* 7j 3 

Incidental powers n. 13, 3 

Laundries i^- 4? 3 

Levy of taxes n. 5, 3 

License n. 3, 5,6,3 

Liquor destroyed n.6, 3 

ISIarkets n. 6, 3 

ISIeat license i^- Ss 3 

Mutilation of trees n. 3, 3 

Oils n.i,3 

Ordinance, sufficiency ot . ,n. 9, 3 

Pawn-brokers ^i, S, 3 

Powers, generally n. i to 9, 3 

implied n. 7, 3 

incidental n. 13, 3 

Profane language n. 5, 3 

Renting property n. 5, 3 

Rescuing prisoner n. 4, 3 

Sale of liquor n. i, 3 

of second-hand clothing, n. 5, 3 

Saloons open at night n. 4, 3 

Show-boards n. 3, 3 

Signs n.3, 3 

Snow and ice ". 3, 3 

Sunday shops n. 3, 3 

Straw, storing n. i , 3 

Tax levy n. 5, 3 

Trees, preservation of n. 3, 3 

^'agrants n. 4, 3 

Water-works n. 6, 3 

Wooden buildings n. 4, 3 

Gifts 

City may receive for poor, n. i, 3115 
Legalized 3224a 

Governor 

Inspects home for friendless 

women 6242 

Member of state board of re- 
view 6401a 

Signs com^missions 228 



Governor's circle 

Can not be sold 



Grade 

Acceptance of plan 

Changing and eitect 11. i. 

Changed more than once. .n. 2, 
Damages caused by change, 

n. 20, 21, 66 ; n. i, 
Establishment, who does, n. 10, 

Kind in cities n. 4, 

Ordinance for 335S ; 

Proof of grade n. 6, 

Publishing not necessary, .n. 7, 
Report of committee upon .... 
Sufficiency 

Grand jury 

Inspects work-house 



231 



3073 
3161 

3170 
3070 

3073 
3073 
3073 
3073 
3073 
3073 



6234 



925 



Guardians sec. 

Taxing in cities and towns. . . . 3264 
See Taxation (general). 

Gunpowder 

Regulating sale and storage, 

n. I, 3155; cl. II, 3106 

Storing n. 4, 3155 

Town may regulate cl. 3, 3333 

Hacks 

Rates, city ma_y prescribe, 

cl. 36, n. 1,3106 
Regulations, city may make, 

cl. 12, 3106, and n. i, 2, 3106 
Stands for cl. 36, n. i, 3106 

Hand-organs 

City may regulate or prohibit, 

cl. I, 3106 

Harbors 

Appeal from assessment 3140 

Appraiser's report 3137 

Appropriation of land for, 

3134; 3135 

Assessments 3141 

Benefits are liens 3141 

City may improve cl. 34, 3106 

contract 3131 

Condemnation proceedings . . . 3136 

Construction 3133 

Contract for construction 3131 

Damages assessed 3138 

Estimate of cost 3^34 

Foreclosure of lien 3141 

Improving cl.34, 3106 

Liens, benefits assessed are. . . . 3141 

foreclosure 3141 

Map 3134 

Notice of appraisement of bene- 
fits 3137 

Possession of condemned lands, 3139 

Railroad crossing 3^34 

Regulations for 3142 

Repairing, 

cl. 34, 3106; 3131 ; 3142 to 3150 

Report of appraisers 3138 

Tender of damages 3^39 

Widening 3131 

Work on 3132 

Hawking 

Regulating and restraining, 

cl. 23, 3106 

Hay 

Regulating sale of cl. 31, 3106 

Health 

Bills of mortality cl. 25, 3106 

Cast-off" clothing. . . .cl. 24, n. i, 3106 
Cattle excluded from city, 

cl. 35, n. 2, 3106 

Contagious diseases cl. 24, 3106 

Council has charge of, 

els. 2, 4, 10, 22, 3106 



Health {confd) sec. 
Diseases, contagious, may sup- 
press cl. 24, 3106 

Drainage of city, to preserve, 

cl. 2, 3106 
Filthy water accumulated near 

house n. 33, 3161 

Garbage cl. 22, 3106 

Hogs excluded from city, 

cl.'35. n- 2, 3106 

Hospitals cl. 24, n. i, 3106 

Infectious diseases cl. 24, 3106 

Pest-house cl. 35, n. 2, 3106 

Pure water, city may provide, 

cl. 35, n. 2, 3106 
Regulations concerning. . .n. 2, 3155 

Sale of milk cl. 35, n. 2, 3106 

of second-hand clothing, n. 5, 3155 
Slaughter houses. . . .cl.35, n. 2, 3106 

Town may preserve cl. 4, 3333 

trustees members of board of 

health 4993 

Unwholesome substances, re- 
moval cl. 22, 3106 

Vacination cl. 35, n. 2, 3106 

See Board of Health. 

Heating pipes 

Laid in street 31 10 

Hedges 

Damages for taking n. 20, 66 

Highways 

Alley is n. 5, 3161 

Corporation to improve, 5040 to 5044 

right of corporation 5044 

Damages for taking n. 2, 66 

Laying out, laws for, must be 

general 118 

Opening in city 3166 to 3194 

in town " 3367 to 33S4 

Petition by abutting lot-owners 

to improve 5040 to 5044 

Private way n. 2, 66 

Sidewalk is n. 5, 3161 

Street is n. 5, 3161 

Vacating in city 3166 to 3194 

in town 3367 to 3384 

Working in city 3156^7 

in town 33^7 

High-water mark 

City can not define, cl. 34, n. 2, 3106 

Hogs 

May be excluded from city, 

cl.3S, n. 2, 3106 

Home for friendless 
women 

Accounts of mayor's fines 6246 

City may establish 6240 

Establishment 6240 

Expenses reported 6247 

Females imprisoned in ,,.,,,. 6240 



926 



Home for friendless 

women {cont'd) sec. 

Fines, certain ones, receives, 

6243, 6244, n. 3, 183 ; n. 9, 3062 

Governor may inspect 6242 

Imprisonment, law governing, 6241 

Inspection 6242 

Judgment confining female in, 6241 

Mayor's account of fines 6246 

Private institution used by city 

or town 6240 

Receipts of fines reported 6247 

Recognizances, when paid to. . 6245 

Reports of mayor 6246 

of trustees 6247 

Hook and ladder com- 
panies 

May be formed in cities 3200 

Regulations for cl. 30, 3106 

Horses 

Running at large cl. 21, 3106 

speed of els. 17, 29, 3106 

Hospitals 

City may build, 

cl. 24, n. 1,3106; cl. 33, 3106 
General welfare clause does not 

effect n. i, 3155 

Gift to ma}' be received by 

city ' n. I, 31 15 

Pest house cl. 35, n. 2, 3106 

Purchase of real estate for . . , .3115^ 

House of ill fame 

Beyond city limits, 

n. 2, 3154; n. I, 3106 

Licensing cl. 4, n. i, 3106 

Prohibited by citv, 

cl'. 9, 3106; n. 5, 3155 

by town cl. 6, 3333 

Proof of cl. 9, n. 4, 3106 

Renting n. 5, 3155 

House of refuge 

City may build cl. 33, 3106 

Hucksters 

Definition cl. 23, n. 2, 3106 

Humane inspector 

Affidavit, files 3221?^ 

Appointment 3221/ 

request for 3221^ 

Duty 3221 r 

' Pay 3221.9; 3221/ 

Powers 32212? 

Repeal of laws 322it; 

Hydraulic company 

City may aid 3i53 

Ice 

On sidewalk cl. 18, n. 9, 3106 



Idiois SEC. 

Realty of may be appropriated, 3173 
street improvement over. . . . 3165 

III fame 

Houses of cl. 9, 3106 

See Houses of 111 Fame. 

Immorality 

City suppresses cl. 7, 3106 

Town suppresses cl. 6, 3333 

Impeachment 

Officer may be 15S 

Procedure notes, 3101 

Impounding 

Power of city cl. 27, 3106 

Power of town cl. 5, n. i, 3333 

Imprisonment 

City may enforce, 

3161; cl. 44, 3106; 3062; 3067 

Female n. i, 3067 

Judgment essential n. i, 2, 3067 

Length of time limited n. i, 3067 

Mayor may inflict 3062 

Penal ordinance so enforced . . 3067 
Statute authorizing is valid, 

n. I, 3067 

Town may enforce 3347 

Work-house used for n. 4, 3067 

Working out fine and costs, 

n. 3> 5> 3067 

Incorporation (city) 

Action against officer for fail- 
ure to serve at election, 

. n. 3. 3034 
Affidavit showing result of elec- 
tion 3035 

Amendments to statutes appli- 
cable to n. 5, 3031 

Ballot 3035 

Ballot-box 3034 

Census, marshal takes 3031 

ordered by town 3031 

when not necessary 3031 

within Avhat time must be 

taken 3032 

Collateral attack on proceed- 
ings n. 17, 3066 

Complaint against election offi- 
cers 3034 

Constitutionality of law. . .n. 2, 3031 

affidavit as to return 3035 

Date of incorporation .... n. i, 3036 
Election, board of town trustees 

orders 3033 

ballots 3035 

ballot-box 3035 

board of election 3034 

clerk of election 3034 

clerk refusing to serve, fined, 3034 
common council of town per- 
forms 3042 



927 



Incorporation (city) {co}:fd) sec. 

costs , . .11. I, 3036 

failure to carry n. 2, 3035 

general law governs, 

n. 2, 3034; n. I, 3035 

inspectors, how chosen 3034 

inspectors, number 3033, 3034 

inspectors must serve 3^34 

inspector is an officer . , .n. 2, 3035 

judges must serve 3034 

judge is an officer n. 2, 3035 

majoritj of ballots cast suffi- 
cient n. 2, 3035 

mannerof holding 3035 

notice for 3033 

officers, appointment 3034 

order for 3033 

polls, number n. i, 3034 

return of 3035 

return, where recorded, .n. 4, 3035 

sufficiency of election 3035 

Election {first) after incorpora- 
tion 3037 

notice of 3037 

Forfeiture of charter n. 2, 3036 

Forms, affidavit of town board, 3035 
appointment of election 

board 3033, 3034 

approval of marshal's ap- 
pointment 3031 

ballot 3035 

complaint against election 

officer 3034 

inspector's statement 3035 

journal entry 3031 

notice of election 3033 

order on petition 3031 

order for election 3033 

petition 3031 

plea attacking incorporation, 3036 

warrant to marshal 3031 

General laws, must be under. . 212 
presumed city incorporated 

under n. i, 3031 

Injunction to restrain does not 

lie n. 2, 3036 

Inhabitants do not constitute 

city n. 4, 3036 ; n. 3, 3096 

number necessary 3031, 3033 

Journal entry as to result of 

election 3035 

Marshal's appointments ratified, 3033 

census, takes 3032 

Mayor can not order an elec- 

'tion n.8, 3031 

Name of city . .n. 3, 3036; n. i, 3031 

Notice for election 3033 

Officers of town, effect vipon, 

n. I, 3042 
Old cities may adopt general 

law 3039 

interest pays 3040 

liabilities do not effect 3040 



Incorporation (city) {coiit'd) sec. 

officers 3041 

order for 3039 

ordinances 3041 

rights of, not lost 3040 

suits continued 3040 

Ordinances of town continued 

in force n- 3) 3096; 3041 

Penalty for failure to serve on 

election board 3034 

Petition for incorporation .... 3031 
number of signers question 

for town board n. 8, 3031 

town board must act upon, 

n. 8,3031 
Property of town goes to city, 

n. 3) 3036 
Presumption that city is incor- 
porated under general law, 

n. T, 3031 
Record of result conclusive, 

3035; n. 2, 3036 

where made 3035 

Rights and liabilities of town 

acquired by city ..... .n. 3, 3036 

Special charter, can not have, 

212; n.6, 3031 
Statement of election inspectors, 3035 

Steps necessary 3031 

Town can only become city, 

n. 7, 3031 

Wards, form for 3037 

town trustees first make, n. i, 3037 
When city becomes incorporat- 
ed 3036 

Incorporation (town) 

Appeal from order n. 5, 3297 

Application to board of county 

commissioners 3296 

Board of county commissioners' 

duties 3031; 3296; n. 3, 3297 

of election, as to 3300 

Census 3-94 

made public. 3295 

Collateral attack upon proceed- 
ings .. .n. 8, 3293 ; n., 3331; 3301 

Debts, when old town incorpo- 

i*ates ....!.. 3317 

Declaration as to 3301 

Districts 3302 

Election, board of 3300 

ballots 3301 

conduct of n. i, 3301 

expenses n. i, 3301 

notice of 329S 

oath concerning notice 3300 

order for 3^97 

petition for 3296 

polls, how long opened 32S')9 

report of inspectors 3301 

General laws necessary for, ... 212 



928 



Incorporation (town) {coiM) sec. 

Hearing by county commis- 
sioners 3297 

Judicial notice of town, 

n. 6, 7, 3297; n. 2, 3301 

Legalizing n. 9, 10, 3293 

Map 3293 

Name 329/ 

Oaths of officers 33^3 

Old town adopting general law, 

n. I, 3316 

effect n. 2, 3317 

Order of 3301 

conclusive 3301 ; 3315 

Petition for 3296 

affidavit shov/ing posting of 
notice 3296 

notice of filing 3296 

Polls, how long open 3299 

Publication of 3295 

School-house taken into, effect, 

n. 3. 4> 3301 

funds n. 4, 3301 

Survey 3293 

affidavit of survej'or 3293 

form 3293 

made public 3295 

oath attached 3295 

Town within a town, 

n. 4. 3297 ; n. 6, 3293 

Trustees, how chosen 33 11 

When incorporation complete, 

n. 3, 3301 

Jncumbermg streets 

City may prevent cl. iS, 3106 

See Obstructions, 

Indianapolis 

Charter omitted, see Appendix. 

Infant 

Duty concerning in street open - 
ino- 



Infectious diseases 

Council may prevent. . . .cl. 34, 

Infirmary for poor 

City may build for poor and 

regulate 

Directors 

term 

Erection of 

Location of 

Maintenance 

Regulations of , 

Inhabitants 

Incorporation, do not consti- 
tute n.3, 3096; n. 4, 

Power can not confer on corpo- 
ration n. 3, 

Injunction 

Aid to railroad may be enjoin- 
ed n. 13, 



3173 
3106 



311S 
3115 
3115 
3115 
3115 
3115 
31 15 



3036 
3096 

3152 



Injunction {confd) sec. 

Annexation of territory may be 

enjoined n. 2,3,3195 

Cemeteries, use of enjoined, 

cl. 5, n. I, 3106 
Damages must be assessed and 

paid n. 2, 3170 

dissolved on payment 3183 

Grade changing '. . . .n. 2, 3, 3073 

Narrowing street n. 3, 9, 3161 

Ordinance void, restraining en- 
forcement, n. 10, 3066 ; n. 21, 3076 

Railroad in street n. 7, 3161 

Taxes illegal, collection re- 
strained, 
n. 8, 3156; n. 6, 3157; n. 5, 3070 
Street improvement, 

3165; 3292//; 3292/ 
collateral attack n. 20, 3162 

Inns 

City may license and regulate, 

cl. 13, 3106 

Insane 

Duty concerning street opening, 3173 

Installments 

City tax is payable in 3225a 

Insurance 

Public property in town may 

be insured . .cl. 12, 3333 

See Firemen's Insurance. 

Insurance company 

City may tax 3156 

Interest 

Payable on city orders. . .3081; 3082 

Rate 3040; n. i, 3082; 3118 

Tax to pay 3156 

Intoxication 

Officer removed for 3226^ 

TovN^n may punish cl. 6, 3333 

See Liquors. 

Jails 

See Prisons. 

Journal 

Nunc pro tunc entry n. i, 3068 

Judge 

See Court (City). 

Judgment 

Payment by work on street, n.9, 3347 

discharge of prisoner 3067 

Railroad 3065 

Rate allowed per day 3067 

Replevying in city 3067 

in town ". 3347 

Street opening proceedings. . . 3180 

Judicial Notice 

Incorporation of town, 

n. 7, 3293; n. 2, 3301 



929 



Judicial Notice {cojiVd) sec. 

Location of city or town. ,n. 2, 3197 

Name of town -n. 2, 3314 

Ordinances not noticed. . .n. 8, 3066 
Wards not noticed, ..... .n. i, 3037 

Jurisdiction beyond cor- 
pora.te limits 

Cemeteries cl. 45, 3106 

Drainage cl. 26, 3106 

Fairgrounds cl. 45, 3106 

Infirmarj for the poor 31 IS 

Levee. 

Liquors, intoxicating, retailing, 3154 

Manufactories, obnoxious, cl.4, 3106 

Markets cl. 11, 3106 

Nuisances, abatement of 3154 

Parks, public cl. 45, 3106 

Powder magazines cl. 11, 3106 

Prostitutes 3154 

Sanitary matters 3i54 

Vagrants 3154 

Water-w^orks cl. 45, 3106 

Jurors 

Citizens may be in penal ac- 
tions n. 19, 3066 

not in damage actions, .n. 29, 3161 

Jury 

City court, trials by 3062 

Firemen exempt from service 

upon 3202, 3202^ 

Mayor's 3062 

may instruct n. 20, 3066 

Trial before mayor . , , , , 3062 

Justice of Peace 

Apportionment for town 3347"^ 

City marshal attends 3075 

Clerk of town, when may serve 

as. n. 6, 3068 ; n. i, 176 

Docket of mayor, may hold, n. i, 3063 

Fees 3063^ 

Jurisdiction 3062 ; n. 3, 3347 

Prisoners, sends to work-house, 6229 

Remission of penalty 6229 

Serves as mayor 3063 

Town officer may serve as. ,n. i, 176 

Ladders 

Town may procure ...... cl. 3, 3333 

Landings 

City may build cl. 34, 3106 



Regulating use of 



n- 4. 3155 



Town may build cl. 18, 3333 

Large cities 

How governed 3051 

Laws for city or town 

Changed or repealed, may be, 

n. 2, 3106 

General, must be 119, 212 

Local, can not be 118 

Salutary, what are. .cl. 10, n. i, 3106 

59 



Laws omitted sec. 

See Appe'ndix for list of. 

Lectures 

License can not be exacted for, 

cl. 16, 3106 

Legalizing acts 

Elections in towns, effect. ,n. i, 3209 

Kokomo n. 5, 3036 

Seymour n. 5, 3036 

Sales n. 2, 3094 

Town incorporations . .n. 9, 10, 3293 

Levee 

Assessment for 3151^ 

notice of 3151" 

City may build 31 Si*^ 

Clerk's duties 3i5i<^ 

Contract for 3151^ 

Cost, how collected 3151'^ 

Jurisdiction of city extended . .3151c 

Notices 3i5i« 

Order for estimate 3i5i« 

Ordinances for 3151^ 

Payment 3151'^ 

Plans 3151C 

Plats 3i5i<^ 

Reference to committee 3151'^ 

Report of committee 3i5i<^ 

Sale of land on assessment. . . .3151c/ 
Survey 3151^ 

Levy for taxes 

City's, when made 3i57' 

Dog, amount cl. 15, 3333; 3156 

See Dogs. 

Interest, town bonds 3345 

Library 3815, 3S05 

Limit in city 3156 

in town ."..cl. 15, 3333; 3345, 3342 

Road tax in town 3356 

School tax in town cl. 19, 3333 

Sinking-fund tax in city 3158 

in city or town of 16,000. . . . 3231 

Water-works 3283 

When and how made in town, 

334S, 3349 

Lewdness 

Fines for, go to home for friend- 
less women 6243, 6245 

Liability of municipality 

Discretion and judgment, not 

liable for n. 3, 3031 

Library (city, town, or vil- 
lage) 

Assessment 3S00 

Banking forbidden 3797 

By-laws 3799, 37S6 

Chairman of meeting 3792 

Clerk of meeting 3792 

Corporation becomes 379^ 

Directors 3793 

annually elected 379S 



930 



Library (city, town, or vil- 
lage) {confd) SEC. 
Dissolution 3S04 

city manages 3804 

Elections 3793, 3798 

Establishment bv city 3791 

Incorporation 3791 to 3797 

Library in large cities 38051^ 

Meetings 3792 

O fficers , 3800 

term 3801 

Powers 3796 

President 3793 

Prizes, stock may be distrib- 
uted as 3803 

Quorum 3801 

Record of organization . .3795; 3794 
Rules and regulations in large 

cities 3805-^ 

Schools, see. 

Seal 3800 

Stock as prizes 3803 

Stock, city may take 3814; 3815 

voting -3810; 381 1 

Tax 3805; 3805c 

in large cities 38o5(f 

how levied and collected in 

large cities 3805^ 

limitation in large cities. . . .T^d>o^d 

Term 3801 

Town may build 3791 

Vacancies in office 3801 

Voting stock 3801 

Library (city or county) 

Cities may take stock in 3815 

Corporations may take stock 

in 3S14 

Election of officers 3807 ; 381 1 

Execution, stock not liable to . 3810 

Fines, how collected 3813 

Formation 3806 to 3808 

Powers of 3808, 3809 

Schools, see. 

Tax, exempt from 3808 

stock exempt from 3810 

Tax to pay for stock 3815 

Library (county) 

Appropriations for 3783 

expenditure of 3784 

By-laws posted 3785 

Commissioners, duties of 3782 

Fines, how collected 3786 

Fund 3782 

Inhabitants may use 3785 

Librarian's duties 3787 

Limit for keeping books 37^5 

Loans of fund,' 

3788; 3789; n. I, 3784 

Officers 3784 

Rooms for ZT^A 

Schools, see. 

Treasurer's duties 3790 



Library (county) {co^ifd) sec. 

Trustee's duties 3784 

Avho "are 3784 

Licenses 

Amount, cl. 13, n. 5, 3106 ; 3346 ; 3226:- 

Auctions in city .cl. 38, 3106 

in town cl. 7, 3333 

Ball-alley cl. 14, 3106 

Billiard-tables cl. 14, 3106 

Bowling-alley cl. 14, n. 3, 3106 

Cider cl. 13, n. 4, 3106 

Clerk of city countersigns .... 306S 
Contract, is not 

cl. 13, n. 4, 3106; cl. 7, n. 3, 3333 

Dog in city 3068 

Entertainments, places of, 

cl. 13, 3106 

Exhibition cl. 15, 3106 

Fees in town, to whom paid, 

cl.7, 3333 

Ferry 3103 

Fine arts exempt cl. 16, 3106 

Games and sports in city, cl. 14, 3106 

in town '. ..cl. 7, 3333 

General form 3068 

Hacks and coaches, cl. 12, n. 2, 3106 

Hospitals cl. 33, n. 3, 3106 

Inns cl. 13, 3106 

Keno table cl. 14, n. 3, 3106 

Lectures • cl. 16, 3106 

Limit of amount, 

3346; cl. 13, n. 5, 3106; 3226 
Liquor, city may require, for 
sale of, 

cl. 13, 3106; n. I, 3066a; 3154 
amount. . . .cl. 13, n. 2, 3106; 3226c 

notices 3100c 

sale beyond limits 3^54 

Sunday cl. 13, n. 2, 3106 

town may require cl. 7, 3333 

Machines cl. 14, 3106 

Market 3068 

Mayor signs 3062; 3096 

Money, refunding . .cl. 13, n. 3, 3106 

paid to town marshal 33^2 

Negligence, city not liable for 

licensee's n. 28, 3161 

Pawnbrokers 3232*^ 

Power to exact under general 

welfare clause n. 5, 3155 

President pro tern, of council 

signs 3096 

Prohibiting sale of liquors. 

cl. 7, n.4, 5, 3333 

Sports cl. 14, 3106 

Taverns cl. 13, 3106 

Theaters cl. 15, 3106 

Town may exact cl. 7, n. 2, 3333 

treasurer grants 3322 

Transfer, 

cl.13, n. 7, 3106 ; cl.14, n.2, 3106 
Vehicles cl. 12, 3106; 3156 



Licenses {co7tfd) sec. 

Wild animals in street, 

cl. 15, n. 3, 3106 
^Vhen ma}' not exact. . . .cl. 16, 3106 

Liens 

Liens upon personalty, taxa- 
tion 30S6 

Liens npon realty — 

cisterns, construction ot', 

cl.43, 3106 
drains, construction of, cl.43, 3106 
sewers, construction ot", cl.43, 3106 

shade-trees, as to cl. 46, 3106 

streets, improvement of, 3162, 3164 
lighting of, 

ci.2S, 3106; 3162, 3164 

repair of 3162 

taxation 3086 

Lieutenant-governor 

Contest over office n. i, 4743 

Light 

Resolution for lighting street, 

cl. 28, 3106 

Streets in city cl. 38, 3106; 3162 

in town. . .\ 3336 ; 3337 

Liquors 

Arrest for illegal sale 3226c 

Destroying n. 6, 3155 

License, requiring, in city, 

3154; n. 6, 3155; cl. 13,3106; 

n. I, 3o66« 

beyond city limits 3154 

in town cl. 7, 3333 

Sale, regulating, on Sunday, 

n.3, 3155 

outside city limits n. i. 3106 

prohibiting n. 16, 3106 

Saloons, closing n. 4, 3154 

Literary property 

Exempt from taxation 6376 

Loans 

City may make temporarily . . 3159 
City of 15,000 may make to pay 

debts 3^16, 3117 

ordinance for 3117 

City with more than 16,000 

voters 3120 to 3124 

Illegality, agent of city can not 

question n. i , 3159 

Modifying city law, effect 335 

Town may make 33+2 

limit ..■ 3342 

petition 3342 

See Bonds. 

Local laws 

Forbidden 118 

Local self-government 

Legislature can not deprive 

city of n. 2, 3043 



Lotteries sec. 

Prohibited 230 

Lucrative office 

What is n. i, 90 

Machine shops 

Aid to build n. 6, 3152 

Majority 

Of council, what is n. 5, 3097 

Militia 

Arms secured for 3227 

Bond to secure arms 3-27 

Distribution of arms 322S 

Firemen exempt from service 

upon 3202a 

Mandamus 

Assessment for street improve- 
ment n. 7, 3164 

Civil engineer compelled to 

act n. 8, 3073 

Election board, n. i, 3046; n. i, 3047 

Officer, restoring toofrice, 

n. 2, 3,3101 

Precept n. 10, 3165 

Seal of city secured by . . . .n. 2, 3102 

Validity of election return, 

n. I, 3047 

Manufactures 

Obnoxious, jurisdiction of city 

over cl. 4, 3106 

Regulating 3199 

Marines 

Right to vote 85 

Markets 

Appropriation of land for,n. 10, 3167 

City may build cl. 33, 3106 

where may not 3107 

Council locates, 

cl. II, 3106; cl. 33, 3106 
Forestalling of prevented, cl. 29, 3106 
Improvement at expense of 

abutters cl. 33, n. 4, 3106 

License, form 306S 

Maintain, where city may not, 310S 
Master, appointment of. .cl. 29, 3106 

poAvers cl. 29, 3106 

Meat inspection, act of 1889 

void cl. 29, n. 4, 3106 

Places established, 

cl. 33' 3106; cl. II, 3106 
Regulations, 

cl. 39, 3106; cl. 11,3106; 

n.6, 3155 
Streets may be used for . . . .n. 14, 66 

Market-house (city) 

Building cl. 33, 3106 

Consent of adjoining land- 
owners 3107. 310S 

Improvement at expense of 

abutters n. 4. 3161 



932 



Market-house (city) {cojifd) sec. 

Nuisance, when 3109 

Removal 

Street used for, may not, 
cl. iS, n. 6, 3106; 



;io9 



cl. 



1,3106; 3107. 



Market-house (town) 

Bonds for 3343 

how sold 3344 

tax for 3345 

Building cl. S. 3333 

Regulating cl. S, 3333 

Marriages 

Mayor may not solemnize 
City judge may solemnize 

Marshal (city) 



5062;/ 

::2ii 



Attorney fees, city liable for 

when n. 2 

Bond 

City court, attends 3075 

Conservator of the peace 

Constable, has powers 3076 

Contracts n. 2, 3104 

Dep^aty 3043 

Duties and powers 3075 

Election 

Fees 

Felons, pursues 
Mayor's court, attends. , 

]Mileage 

Notice, serves 

concerning sea walls . 

Oath 

Office abolished in large city. .3221Z' 

term \ . . 3043 

191 
076 



307S 

3095 
3218 

3075 



3043 

3077,3O77^> 3^iS 



3077^ 

316S 

cl. 34, 3106 
3095 



Obstructions in street, removes, 

Powers 3075' 

Prisoner, how long may contine 

without trial 

works on street 

Process executes 3075 : 

Return on warrant 

Street commissioner, duties per- 

form.s 

Streets, duties as to 3043 : 

Subpoenas serves for city com- 
missioner ". •::i68; 

Sale ^ 

Term of office 304 

Vacancy 3050 

Marshal (town) 

Arrest, may make n. i, 2, 3327 

Assistants to take census 303- 

Bond 3320 

Census of town, takes 3031 

return of 3032 

Constable, has powers 33-7 

Contracts for sidewalk 3359 

Defending, town liable for cost 

o^' n. I. 3339 



3075 
3067 
3210 
3066 

3043 

319^ 

3169 
3067 



Marshal (town) {.confd) sec. 

Deputy, can not have . . . .n. 2, 3327 

Duties 3327 

Election 3325 

Fees n. I, 3330 

License money, collects and 

pays to treasurer . . . .3322 ; 3321 

Pay . .' 3330 

Powers 3327 

Prisoners, works 3347 

Road supervisor, when is, 

3367 and n. 6, 3367 
Street commissioner, acts as, 

cl. 9, n. I, 3333 

Term of office 3325; 3326 

Vacancy 3326 

Working streets 33^7 

Mayor 

Absence from city, leaves dock- 
et with justice 3063 

Acknowledgments, may take. . 3062 
Actions for penalties, how 

brought before 3066 

Affidavits, may take • 3062 

Appeal lies from n. 9, 13, 3066 

practice n, 10, 11, 3066 

Appoints police officers. . .cl. 8, 3106 
Bail, can not receive money in 

lieu of n. 10, 3062 

Bank stock, list demands 3255 

files with clerk 3257 

Bond I official) 3062; 3095 

liable upon for fees n. 2, 3063 

Bonds of city, signs 31 iS 

Calls council m.eetings. .n. i, 2, 3097 

Commission n. 4, 3043 

Commissions of officers, signs, 

3063 and n. 5, 3062 
Common council, president of, 3096 
Complaint before, 

3066 and n.6, 3066 

form 3066 

Conservator of the peace, 

3062 and n. 2, 3062 
Contempt, may punish. . .n. 11, 3062 

Contracts of city, signs 3096 

Court holds, except on Sunday, 3062 
Deed for public square, signs, 

cl. 47, 3106 
for real estate sold, signs .... 31 12 
ackowledgments of, may take, 3062 

Depositions, may take 3062 

Docket 3063 

death of mayor 3063 

deposited vrith justice, . .n. i, 3063 

entries 3066 

examined by attorney-general, 

n. 9, 3062 

fees 3063 

how keeps , 3063 ; 3066 

Duties 3062 

Election 3043 



933 



Mayor {confd) sec. 

can not order for incorpora- 
tion n. 8, 3031 

Fees 3063 ; 3063^; n. 2, 3063 

pays to city treasurer 3063 

release, must execute 3063 

form 3063 

Females, sends to home for 

friendless women 6240 

Fines, pays over to treasurer. . 3062 
Home for friendless, keeps ac- 
counts with 6246 

Imprisonment, may inflict. . . . 3062 
Judicial oiiicers, 

n.3, 156; n. I, 176; n. 4, 3043 

Jurisdiction 3062 and n, 6, 3062 

Jury may instruct n. 20, 3066 

trial by, must allow 3062 

Justice of peace, acts as 3062 

Licenses, signs 3096; 3062 

Marshal attends his court 3^75 

Member of city council, 

3096 and n. 4, 3096 

of board of health '4993 

Minutes of city council, signs, 

n. I, 3097 
Notice to, of defective street, 

n-5, 3043 

Oath „ 3095 

Officers of city, supervises 3062 

Office is judicial, 

n. 4^3043; n- 3. 156, n. i, 176 

term , , 3043 

Oi-ders, signs .3069; n. 5, 3162 

Ordinances enforced before . . . 3066 
Penalties, may remit 6229 

suits for 3066 

Permits, signs 3062 , 3096 

Plat of city, signs 3249 , 3250 

Pleading before , 3062 

Police officer, appoints . , . .cl.8, 3106 

Powers of 3062 

Practice before . .3062 and n. 8, 3062 
Recommends measures to coun- 
cil 3062 

Remission of penalty 6229 

Removing city officer, may not, 

n. 3, 3062 
Report of fines 3062 

concerning home for friend- 
less women 6246 

Salary, Avhen can not draw. . . . 3063 
Seal of city, keeps ^ 3062 

when does not use, 

n. I, 3102 ; n. 4, 3062 
Sickness, docket deposited with 

j ustice 3063 

Signs ordinances in large city, 3055 

in any city 3099 

statement of indebtedness ... 3120 
Term of office 3^43 

in case of appointment 3050/;' 

Tie, casts vote when there is . . 3096 



Mayor {confd) sec. 

Vacancy in office how filled, 

3050; 3050^' 
docket deposited with justice, 3063 
Venue, when can not be taken 

from 3062 

Avrongfully denying, effect, 

n. 12, 3062 

Votes when there is a tie 3096 

Warrants, signs 3069 

how directs for an arrest, n. i, 3066 
Work-house, visits 6235 

Meat 

Inspection law of 1889 void, 

cl. 29, n. 4, 3106 
Sale of, regulated n. 3, 3155 

Mechanic's lien 

Can not be taken on city or 
town property, 

^1-33. n. 5> 3106; n. 25, 4444 

Mendicants 

City may punish cl. 20, 3106 

Metropolitan police 

See Police. 

Milk 

Sale of regulated cl. 35, n. 2, 3106 

Mills 

Exercise of power of eminent 

domain . , n. i, 66 

Minor 

Agreement upon measure of 

damages o . n, 23, 66 

Taking part in gaming, 

cl. 14, n. 2, 3106 

Mittimus 

Forms 3066; 3067 

Mobs 

City not liable for acts of, 

cl. 7, n. I, 3106; n. 3, 3203 

Money 

Appropriation by town 3339 

drawing 3341 

Borrowing, city may n. 22, 3106 

Monopoly 

Gas cl. 28, n. 5, 3106 

Street railways n. 3, 4147 

Water-works cl. 26, n. 8, 3106 

Monument 

May use in street n. 12, 66 

Municipality 

Inhabitants are not n. 4, 3036 

Jurisdiction n. i, 3106 

Museum 

Library company may build . . 3812 

Music 

Regulation in street cl. i, 3106 



934 



Name sec. 

City's n. I, 3031 ; n. 3, 5036 

Consolidation of city and town, 

3239; 3240 

Town's 3297 

change of 3384 

National road 

A public street in Indianapolis, 

cl. 18, n. 7, 3106 

Natural gas 

Regulations for 3229// 

Use of street for n. 2, 3229/^ 

See Gas. 

Nays and ayes 

Called on adoption of ordi- 
nance 3099 

Negligence 

Abutter when liable to city, 

n. 40, 3161 

when not liable n. 19, 3161 

Animal injured in city pound, 

cl. 21, n. I, 3106 
Bill of particulars can not be de- 
manded n. 23, 3161 

Blind person using street, n. 18, 3161 
Bridges, defects in . . . .n. 25, 24, 3161 
Building material in street, 

n. 26, 3161 

Coasting in street n. 27, 3161 

Completion of work n. 11, 3106 

Constitutional limitation on 
indebtedness, no defense, 

n. 22, 37, 3161 
Contractor liable for his own 

negligence n. 20, 3161 

city not liable for his acts, 

n. 27. 3161 
when city liable for his act, 
cl.26, n.4,3106; cl.18, n.8, 3106; 

n.20 3161 
Contributory, no recovery, 

n. 22, 3161 
Culvert insufficient for water, 

n. 32, 3161 
Dead animal in street, 

cl. 18, n. 9, 3106 
Driver's concurring with city's, 

no defense n. 22, 3161 

Exhibiting animals in street, 

cl. 15, n. 3, 3106 
Excavations in street, 

cl. 18, n, 9, 3106; n. 24, 3161 
Firemen, city liable to for de- 
fective street, 

n. 18, 3161 ; n. 2, 3202 
Freshets, cl.26, n. 9, 3106; n. 32, 3161 
Frightening animals, 

n. 18, 28, 3161; cl. 18, n. 9, 3106 

Gas works cl. 28, n. 8, 3106 

Ice on sidewalk n. 40, 3161 

Insurer of safety of, city is not, 

n. 23, 3161 



Negligence [confd) sec. 

Juror, tax-payer can not serve 

as in damage case. . . .n. 28, 3161 
Licensee, city is not liable for 

his acts n. 28, 3161 

Looking for defect, traveler 

must n. 22, 3161 

Ministerial act, city liable for 

failure to exercise . . . .n. 5, 3106 

Narrow bridge n. 24, 3161 

Notice of defect, 

n. 2, 3074; n. 40, 3161 
to councilmen is to city, n.2, 3096 
Obstruction causing injury, 

n. 19, 3161 
Omission of third person, n. 19, 3161 
Plan defective, 

cl.43, n. 17, 3106; n. 12, 34, 3161 
Police officer, city not liable 

for his act cl. 8, n. i, 3106 

Prisoner escaping and officer 

falling in ditch n. 30, 3161 

Railroad in street, and lower- 
ing grade, n. 27, 3161, n. i, 4153 

Repairing street n. 18, 3161 

Sewer, damages occasioning, 

cl. 43, n. 12, 3106 
imperfect construction, 

cl.43, n. 10, 3106 

repairing cl. 43, n. 7, 3106 

Sidewalk, ice and snow on, 

n. 23, 40, 3161 
Stairway opening on street, 

n. 38, 3161 
Street railway in street,. . .n. i, 4153 
Surface water, 

n.32 to 34,3106; cl.43,n. 17, 3106 

Survival of action n. 35, 3161 

Tax-payer incompetent to serve 

as juror n. 29, 3161 

Third persons act, liabilitj^ of 

city for n. 19, 3161 

Town liable n. 1,4, 3367 

Traction engine on bridge, 

n. 25, 3161 
Transfer of land injured, n. 36, 3161 
Viaducts, railroad must build, 

n. 28, 3161 
Wall standing when danger- 
ous n. 31, 3161 

Water-works, negligence in 

constructing n. i, 3277 

improper construction, 

cl. 26, n. 4, 3106 
Wrong-doer liable to city, n. 19, 3161 

New trial 

Mayor may grant n. 14, 3066 

Noise 

Increasing damages to property, 

n. 23, 66 



935 



Notice SEC. 

Advertisement for bids, 

3162; cl. 43, 3106; 3i5iZ> 
Agreement to unite citj and 

tovrn 3235 

Annexation in city 3196 

Appraisement of land for har- 
bor 3137 

Attorney of citv on appeal 

from street opening 31S0 

Board of equalization in city. . 3157 
City clerk notifies officers elect, 3048 
city commissioners of meet- 
ing 3168 

Condemnation proceedings for 

water- works 3266 

Contractors, 01,43, 3106; 3162; 3151*^ 
Corporation affected by street- 
opening 3179 

Damages for unknown land- 
owners 3183 

Defective street, n.5, 3043 ; n. 21,3161 

Disannexation notice 3247 

Election, first city election. , . . 3037 

incorporating city 3033 

special. 3047; 3043 

to person elected n. i, 3048 

town 3304; 3305 

water-works 3265 

See Elections. 
Interest on city orders stopped, 3082 
Meeting of city council . . 3168 ; 3097 

city commissioners 3168 

town trustees 3332 

Nuisance, abatement. . . .cl. 35, 3106 

Officer, removal 3101 

Ordinances not taken judicial- 
ly of by courts n.8, 15, 3066 

Payment of interest stopped . . 3082 

Publication 3232a 

designating paper 3100/; 

in large cities, ... T^iood; 3100a 

posting in lieu of 3232 

Removal of bodies from vacat- 
ed cemetery 3291 

Repairing docks 3^44 

Sale of lands 31 19 

for taxes 3091 

personal property for taxes, 

3089; 3090 
See walls, concerning . . .cl. 34, 3106 

Sewer cl. 43, 3106 

Street opening 3^77 1 3168 

vacation 3184 

Town, legal, how given 3232 

Treasurer's, (city) concerning 

taxes 30S7 

(town) settlement 3323 

Vacation of street 3^84 

Written, sufficient 3232 

Noxious trades 

Regulations for cl, 4, 3106 



Nuisance sec. 

Abatement by city, 3154; cl. 2, 3106 
Cemeteries are not/er sc, 

cl-5. n- 3, 3106 

Market-house may be 3109 

Notice to abate cl. 35, 3106 

Obstructions in street, 

cl. 18, notes, 3106 

Sand in street cl, 18, n. i, 3106 

Suppression, city may cl. 2, 3106 

town may cl. 4, 3333 

What is cl. 4, n. I, 310b 

Nunc pro tunc 

Embezzlement may be shown 

by n, I, 3078 

When may be made n. i, 3068 

Oaths 

Clerk of city can not administer, 

n. I, 3068 
Failure to take official oath, 

complaint , 3049 

Filing 3049 

Form , , . 3049 

Officers must take 3049, 3095 

Obstructions 

Allej's, in, town may prohibit, 

cl. 6, 3333 

Buildings cl. 18, n. 6, 3106 

Damages caused by, 

cl. 18, n, 10, 3106 

Doors cl. 18, n. 5, 3106 

Door-steps cl. 18, n. 5, 3106 

Hole in sidewalk . . .cl. 18, n, 5, 3106 
Market-hovise, 

cl. 33, n. I, 3106; cl. 18, n. 6, 3106 

Peanut stand cl. 18, n. 6, 3106 

Proof of cl. 18, n. 6, 3106 

Riding upon sidewalk, town 

may prohibit cl. 11, 3333 

Scaffolding cl. 18, n. 6, 3106 

Shutters cl. 18^ n.5, 3106 

Sidewalks, on, town may pro- 
hibit, cl. II, 6, 3333 

Skids cl. 18, n. 6, 3106 

Stairways cl. 18, n. 6, 3106 

Streets, to, town may prohibit, 

cl. 6, 3333 
What is cl. 18, notes, 3106 

Office 

Abandonment of n. 2, 156 

Abolished, when may be . .n. 3, 3043 

Bribery disqualifies 87 

Demand for possession 3095 

Duelist, can not hold 88 

Duration 224 

Jvidicial, all are conservators of 

the peace 175 

mayor is n. 4. 3043 

Legislature may create but can 

not till n, 3, 3043 

Lucrative, what is 90 



136 



Deputies 



5043 



who can not be. . . .3043rt to 3043.^ 
Duelist can not hold office .... 88 
Duties and powers of ap- 
pointee 3050^' 

Election in city, v%-hen 3043 

Expulsion . .3101, and n. i to 7, 3101 

Failure to qualify n. i, 3049 

Fees and salary regulated by 

general law 118 

Holding oyer 235 ; n. 10, 3043 

Impeachment 158 

Interest in contract 3i04) 3226cz 

Intoxication 3236^ 

Judicial office, when disquali- 
fies 176 

Mandamus to compel election 

board to act, n. i, 3046; n. i, 3047 

Oath 336, 3050^ 

Penalty for failure to qualify, 

complaint 3049 

Pro tempore appointment .... 93 

Qualifications 3333 

Remoyal, effect of n. 158; 3101 

mayor can not make . . . .n. 3, 3063 

notice 3101 

ordinance 3101 

Residence 156 

Resignation n. 4, 3050 

Tenure limited 334 

Terms 3043, 3050c 

Vacancy, clerk 3050a 

councilmen 3050CZ 

mayor ^ 3050a 



Office {confd) SEC. 

Oath 3049 

Penalty for not serying 3049 

Vacancies, how filled 159 

when can not be filled, n. 3, 5, 3050 
when occurs n. 4, 3050 

Officer 

Acceptance, failure to make, 

penalty n. i, 3049 

complaint upon 3049 

Appointment, how made 333 

form 3050*^ 

when made n. 3. 3098 

Assessor's in citj', abolished, 

n. I, 3, 3071 
Bond, failure to giye and eftect, 

3050(^5 and n. I, 305orf 

Board of election is n. i, 3046 

Bribe, accepting disqualifies . . 87 
Clerk of city ma;/ serye as jus- 
tice of peace n. 6, 3068 

Commissions of city officers, 

n. 2, 3047 

signed by mayor n. 5, 3063 

Contract of city, can haye no 

interest in 3104, 3336^ 

void ..n. 4, 3364 

Defaulter can not hold office . . 91 



Officer {coufd) sec. 

term 3050a 

Who are city officers, 

3043; n. 3, 3098 

Oils 

Sale of controlled n. i, 3155 

Old city 

How may adopt general city 

laws." \ 3039 

Interest oji debt 3040 

Liabilities 3040 

Officers 3041 

Property 3040 

Rights \ 3040 

Omitted laws 

See Appendix for list. 

Omnibuses 

Rates of fare cl. 36, 3106 

Stands cl. 36, 3106 

Taxing 3156 

Orders (city) 

Assessments receiyable for. . . . 3080 
Cancelled, can not be used. . . . 3080 

Clerk draws 3069 

Countersigned by clerk 3069 

Discounting unlaAvful 3104 

Interest on . , .3081 ; n. i, 3082; 3040 
notice to holders, to stop in- 
terest 3083 

Leyee paid for with 3151'^ 

Mayor signs 3069 

Order of payment 30S1 

Payable on presentation 3040 

Presiding officer can not sign, 3079 

P..egister 3069, 30S0 

Sewer paid for with, cl. 43, n. 4. 3106 

Signed by mayor 3069 

Taxes paid with 30S0, 3083 

Treasurer accepts -3079, 3080 

cancels 3080 

redeems 3080 

registers 3080 

When can not be drawn 3069 

in large city 3123 

Ordinances (city) 

Adoption n. 3, 3099 

in large cities 3055 

Affidayit denying publication. . 3064 

Appropriation, form 3105 

Attorney of city draws 3078 

Ayes and noes called on pas- 
sage 3058 

Bond ordinance 3095, 31 19 

By-law n. 2, 3099 

Clerk attests 3099 

records 3099 

Constitution concerning title of 

does not apply to n. 2, 3100 

Construction, .n. 18, 3066; n. 8, 3100 
Copy of need not be set out in 

complaint ,,...., 3066 



937 



Ordinances (city) {confd) sec. 

Council may regulate duties of 

officers bv 3098 

powers as to 3106, 3155, 3162 

Defined n. 2, 3099 

Drainage, form cl. 2. 3106 

Emergency clause, form 3100 

Enacting clause, form, 

3100, and n. 5, 3100 
Enforcement, how penal are, 

n. 2, 3066 
failure to, effect on city, 

u. 14, 3106 
injoining, can not be. . . ,n. 7, 3347 
Essential parts, n. 9, 3155; n. 2, 3333 
Evidence when duly printed . . 3100 
General welfare clause author- 
izing adoption 3155 

Grade ordinance 3073 

Impeachment of officers 3101 

Incorporation, town or city, ef- 
fect upon n. 3. 3036 

Judicial notice not taken of, 

n. 8, 3066 

Jurisdiction of city n. i, 3206 

Levee ordinance 3151'^^ 

Marshal of town enforces .... 3327 

Mayor executes 3062 

signs 3099 

tries violations of, 

3062, and n. 6, 3062 
Notice of contents, every one 

must take n. 15, 3066 

Nunc fro tunc notes, 3068 

Old town adopting general 

law, form n. i, 3041 

Passage of 3099 

Penalties on sliding scale, n. 7, 3100 
Pleading and practice under, 

n. 4, 6, 7, 3066 
Printed copies may be used, 

n. I, 3099 
Proof of, 

n. 2, 3, 3064; n. 8, 3066; 

n. I, 3099 

Publication n. i, 3100 

affidavit denying 3064 

clause, form 3100 

must be in English language, 

n.i, 3100, 3150.0- 

order for not necessary 3064 

penal 3100 

supplemental, must be . .n. i, 3100 

town cl. 16, 3333 

Reasonable, must be n. 6, 3100 

Recording n. i, 2, 3099 

Repairs to street , 3162 

Repeal of n. 4, 3100 

Restraint of trade n. 6, 3100 

Rules of evidence, can not 

change n. 8, 3066 

Salary, form 3iot; 

Sewer, form cl. 43, 3106 



Ordinances (city) {confd) sec. 

Shade-trees, form 3229 

Signing by mayor . .3055 ; n. i, 3099 
by president of board of alder- 
men 3055 

Tax levy 3157 

Title to n. 2, 3100 

Trial of officers, form 3101 

Validity for the courts n. 6, 3100 

Working out penalty of on 

streets 3067 

Ordinances (town) 

Defenses to .n, 8, 3347 

enforcement n. 5, 3347 

Fines, collection 334^ 

Injoining enforcement, can not, 

n. 7> 3347 

Pleading to entorce 3331 

Pviblication cl. 16, n. 2, 3333 

Repairs to street 3162 

Title n.6, 3347 

Welfare clause cl. 16, 3333 

Orphans' Home 

Councilmen may visit . . . .n. 7, 3096 

Parks 

Avenue taken for . . .cl. 45, n. 3, 3106 

Definition cl. 45, n. 4, 3106 

Donation of land, acceptance .3292/^ 

Improvement of cl, 46, 3106 

Library may maintain 3809 

Lighting of cl. 28, 3106 

Property may be taken for. .n.15, 66 

Protection to cl. 45, 3106 

Railroad in,n. 15, 66 ; cl. 45, n.3, 3106 
Real estate, city may purchase 

for cl. 45, 3106 

Rules and regulations for, 

3292/; cl. 45, 3106 

Square defined cl. 45, n. 4, 3106 

Street improvements, liability 

for 3163 

railway laid in, 

n. I, 4147; cl.45, n.3, 3106 
Tax for park 3292(7; 32921^ 

Parks, proceedings to 
condemn land for 

Appeal when must be taken 

from proceedings 32920 

trial upon 3292(7 

Commissioners, appointment. .3292/ 

certificate of 3292/ 

notice of 3292/ 

Condemning land for park . . . .3292/ 
Damages, commissioners assess, 3292/ 

tender 3292^ 

Duties of commissioners . . , .\T,2i)2m 
Jurisdiction of city extended. . .3292/ 
Notice of assessment of dam- 
ages 3-9-^^ 

of commissioners appoint- 
ment 3-92-^ 



938 



Parks, proceedings to con- 
demn land for {confd) sec. 

to land-owner 3292/ 

Oath of witnesses 3292;;/ 

Report of commissioners 3292 w 

forms 3292;;/ ; 32920 

refusal to accept 32926" 

Resolution of condemnation . . . 3292/ 

Rules and regulations for 3292/ 

Tax for park 32927 

Town may purchase 3292/ 

Park commissioners 

Accounts and receipts, keep . .3293.V 

Control parks ^2()2tu 

Donations, may accept 3292/^ 

Duties •. .3292W 

Election 32925 

bond and oath 3292/" 

notice of 3292^ 

Pay 3292x1/ 

Powers 3292>' 

Report 3292.V 

Tax for park 3392t; 

Partition fences 

City may regulate . .cl. 41, n. i, 3106 

Party walls 

City may regulate, 

3156; cl. 41, 3106 

Pauper 

Exemption from city poll-tax, 3156 

Pawnbroker 

License for, 

n. 8, 3155; cl. 16, 3106; 3232Z> 

Peace 

City preserves ^cl. 7, 3106 

Mayor conservator of 3062 

Town preserves cl. 6, 3333 

Peanut stand 

Obstruction to street, cl. 18, n. 6, 3106 

Peddling 

City may regulate cl.23, 3106 

Definition of cl. 23, n.p, 3106 

Town may require license, cl.7, 3333 

Penalty 

Actions for in city. 3066 

civil action is n. 4, 3066 

Complaint in town n. 5, 3347 

Election inspector incurs, when, 3034 

clerk, when 3034 

judge, when 3034 

Home for friendless women get, 

when n. 3, 183; 6243 

Limit 3155 

Mayor pays over 3062 

Recovery! how had in city 3066 

in town 3347 

Refusing to accept office, in- 
curs 3049 

Remission 6229 



Penalty [conVd) sec. 

School gets n. 3, 183 

Town may recover 3347 

how recovered 3347 

nature of action to n. 4, 3347 

Permits 

Mayor signs 3062 ; 3096 

clerk countersigns 3068 

Personal property 

Assessment by city assessor .... 3071 
See Taxation. 

Pest house 

City may build, 

cl- 33) 3106; cl. 24, n. I, 3106 
Renting cl. 35, n. 2, 3106 

Pe.stilential diseases 

City may prohibit cl. 24, 3106 

Petition 

Annexing out-lots to town .... 3388 

Cemetery, vacating 3290 

Dissolution of city ... 3130 

Incorporating city 3031 

town 3296 

Loan in town 3342 

Public square, selling. . . .cl. 48, 3106 

use for public school 3386 

Railroad, aid to 3152; 3153 

Removal of building . . . .cL 32, 3106 

Shade-trees 3229 

Street, changing 3190 

vacation in city 3184 

vacation in town 3379 

Surrender of city charter 3128 

town charter 3318 

Water- works 3265 

Piers 

City may build cl. 34, 3106 

Place of amusement 

City may regulate cl. 14, 3106 

Plans 

Changing for street improve- 
ment n. 7, 3073 

Civil engineer prepares 3073 

Defective sewer plan, 

cl. 43, n. 5, 17,3106 
Negligence in selecting . ,n. 12, 3106 

Plats of city 

Acknowledgment. . .3376 ; n. 4, 3375 

Approval 3253^ 

City mav make 3249; 3250 

Conveying land by reference to, 

eftect n. 5, 3375 

Dedication by n. i, 2, 3374 

Defined n. 5, 3195 

Evidence as 3249 ; 3250 

Legalized 3253 

Petition submitting to city 

council 3253a 



939 



Plats of city {co7ifd) sec. 

Preservation of 3251 

Record of 3250; 3251 

Survey for 3249 

Vacation, laws concerning must 

be general 118 

how made 3379 

Wife signing n. 3, 3375 

Plat of town 

Acknowledgment of 3376 

Adopting new plat 3391 

Donation bj 3375 

Evidence, Avhen is 3249 

Imperfect plat corrected 3378 

Legalized 3253 

Lost may be replaced 3391 

Recording 3377; 3374 

penalty for failure to 3377 

Pleading and practice 

Abatement n. 5, 3066 

Absence of defendant ... .n. 21, 3066 
Action on ordinance a civil 

case n. 4, 3066 

Amendment of complaint, n. 11, 3066 
Appeal to circuit court . . . .n. 9, 3066 

bond 3067 

to supreme court n. 13, 3066 

Collateral attack on incorpora- 
tion of city can not be 

made n. 17, 3066 

Commitments 3066 

Costs n. 12, 3066 

Crimes not punishable by city, 3o66rt 

Defenses n. 5, 3066 

Defendant declining to testify, 

n. 8, 3066 

Docket entry of trial 3066 

Estoppel n. 16, 3066 

Evidence, rules of can not be 

changed by ordinance, n. 8, 3066 

Executions and levy 3067 

Judgment of conviction, n. i to 3, 3067 

Judicial notice n. 8, 3066 

Jury, citizen of city may be, 

n. 19, 3066 

instructing n, 20, 3066 

Mittimus to work-house 3067 

New trial n. 14, 3066 

Proof of ordinance n. 8, 3066 

Proviso in ordinance n. 6, 3066 

Recognizance 3066 

Statute of limitations n. 5, 3066 

Subpoena 3066 

Transcript, certificate 3067 

Venire 3066 

Warrant 3066 

Police 

Act of 1889 unconstitutional, 

cl. 8, n. 2, 3106; n. 2, 3043 

Appointments cl. 8, 3106 

Board ol police established, cl. 8, 3106 



Police [cojifd) SEC. 

Chief of fire department has 

powers of 3201 

Establishment of cl. 8, 3106 

Humane inspector has powers 

of 3221/ 

Liability of city for acts of 

cl. 8, n. I, 3106 

Mayor appoints cl. 8, 3106 

Notice of defect in street . .n. 5, 3043 

Regulations of cl. 8, 3106 

Removal from cl. 8, 3106 

See Arrest. 

Police (metropolitan) 

Additional patrolmen, appoint- 
ment of , 322Iy(' 

term 3221X' 

Acts of 1889 unconstitutional, 

cl. 8, n. 2, 3106; n. 2, 3043 

Arrest, power to make 3221/ 

Board of commissioners, ap- 
pointment of T^22\a 

old board abolished 3221^' 

powers of .322i(^ 

qualifications of 3221c 

Bond of commissioners 322i<7 

of superintendent 3221;;/ 

Duties of police 3221// 

Electioneering prohibited 3221/ 

Expenses charged to city 3221^ 

Fees, members of force can not 

take 3221/ 

disposition of 3221/ 

taxing 3221/ 

Interfering with, penalty 3221/ 

Marshal's office abolished 3221/i 

duties performed by police . 3221/^ 

Old board abolished 3221(7 

Patrolmen, number of 322i<^ 

pay of 3221^ 

qualifications of 3221*^ 

Powers of board 3221^; 32215 

President, appointme,nt 3221c 

member of board of health . . 3221c 

Process, police serves 3221// 

Property, control of 3221^ 

Removal from office, rules con- 
cerning 322ia^ 

Repeal of laws .... 32210 

Rewards, can not accept 32212 

Rules and regulations, .'^22ib; 3221^ 

Secretary and bond 3221c 

Special police 323iZ- 

Superintendent 3221/; 

pay 3221/' 

qualifications 322 1/> 

Suspension of police officer . . .3221/^ 

Poll tax 

City may levy 3156 

Town may levy 3345 

Poor 

City may build infirmary for. . 31 15 



940 

Population sec. 

Number to incorporate city, 

3031; 3033 
Return of town marshal con- 
cerning 3032 

Posse comitatus 

Peace, officer may commend, 

n. 8, 3076; 3076^/ 

Pound 

City may establish, 

cl. 31, 3106; cL 27, 3106 
Land may be condemned for, 

n. 13, 66 
Sale of animals cl. 3i, n. 2, 3106 

Powder 

Magazine located by city, 

cl. II, 3106 
See Gunpowder. 

Powers of city or town 

Extraordinary cl. 13, 3106 

Failure to exercise, 

cl. 3, n. I, 3106; n. 4, 5, 3106 

Incidental n. 13, 3106 

Limit n. 4, 3106 

Ministerial, failure to exercise, 

n. 5, 3106 

Surrender n. 4, 3106 

Precept 

President /rt? /e;/z.can not sign, 

n. 5, 3096 
See Street Improvement. 

Precincts 

Size in city or town 3224 

See Elections. 

President pro tern. 

Board of aldermen elects 3057 

Council elects 3096 

Powers = n. 5, 3096 

President of board of 
aldermen 

Election 3057 

Vacancy in office, mayor acts, 3060 

Privies 

Nuisances cl. 4, n. i, 3106 

Prisons 

City may build . . .3235 ; cl. 44, 3106 
Commitment to by city, 

3062, 3067, 3075, 3201 
Jail, city may use, 

3063, 3067, 3075, 3201 
town may use 3225 

Keeper, duties of 3067 

Labor in 3067 

allowance for 3067 

hours of 3067 

Law applicable to city prison, 

3225 ; cl. 44, 3106 

Town may build 3225 



Prisons {confd) sec. 

Work-house, used by city, 6232; 6237 

by town 6237 

See Home for Friendless Women. 

Prisoner 

Confinement in work-house, 

3067,6232; 6337 

by town 3347 

Credit for work in town 3347 

Judgment of conviction essen- 
tial n. I, 3, 3067 

Length of imprisonment, 

3067, 3075^ 6239 
Throwing officer in ditch, city 
not liable to such officer, 

n. 30, 3161 
Working out fine, 

3067 and n. i to 3, 3067; 3225 

Process 

City marshal serves 3075 

Service on city n. 3, 3036 

school, city trustees n. 3, 3036 

corporation 3065 

SheriiT serves for city court. . . 3210 
railroad 3065 

Warrant necessary in city ac- 
tions , . .n. 31, 3066 

Property 

Purchase by city, 

n. 13, 3106; n. 5, 3155 

Prostitutes 

Arrest , 3^54 

Associates 3^54 

City may restrain cl. 20, 3106 

Loitering on streets, cl. 20, n.2, 3106 

Town may punish cl.6, 3333 

Publications 

Annexation proceedings in 

town must be published . , 33S9 
Averment concerning, unnec- 
essary 3064 

How made 3100,0- 

N umber 3100/ 

Ordinances, only penal must 

be n. 1 , 3100 

Proof of how made Concerning 

ordinance n.2,3, 3064 

Sewer account 3398 

Town ordinances cl. 16, 3333 

vacation of town 3379 

vacation of street 3368 

Public property 

City council regulates, 

cl. 29, 3106; cl. 45, 3106 

Town trustees may control . . . 3338 

may inclose cl. 14, 3333 

Public square 

City may sell. . . .• cl. 47, 3106 

may purchase cl. 47, 3106 

School purposes, use of for . . . 3386 



941 



Public square {confd) sec. 

Town may inclose cl. 14, 3333 

Use for public school of town, 3386 
Vacation, laws concerning 

must be general *. . 118 

[84 



citv mav vacate 



title to, after vacation 3381 

town may vacate 3385 

Pumps 

Obstruction to street, 

cl. 18, n. 6, 3106 
Town may regulate cl. 3, 3333 

Quarantine 

City may establish cl. 6, 3106 

Quietus • 

City clerk issues 3080 

form 3080 

Quo warranto 

Annexation proceedings can 

not be thus tested . . . .n. 4, 3195 

Quorum 

Appeal from precept, quorum 

must be shown n, 14, 3162 

Breaking an oftense, n.7, 3097; 3097^ 

Less than can not transact 

business n. 8, 3097 

What is . . . . . n.5. 3097 

Railroads 

Actions against 3065 

Appropriation of right of way 

for street n. 11, 3167 ; 3156 

constitution authorizes n. i, 66 

Crossings, must build bridges 

over n. 28, 3161 

must clean cl. 42, 3106 

signals at 4020 

Damages for appropriation of 

a way across n. 11, 3170 

Donations to, legalized 3224(7 

made to 3152 

Flagmen and gatemen, 

cl. 42, n. 2, 3106 

Grade, city may regulate 3224^ 

city may fix 3161^ 

lowered to street level, n. 27, 3161 
negligence in city for not 

regulating n. 27, 3161 

Gutters and crossings, must 

clean cl. 42, 3106 

Harbor constructed over 3134 

Judgment against, for penalty, 3065 
Liability for street improve- 
ment n. 16, 18, 3162 

Life, protection to cl. 42, 3106 

Marine 3110a 

Occupying street, 

cl. 18, n. 9, 3106; n. I, 332S ' 

Parks, may not use, [ 

n. 15, 66; cl. 45, n. 3, 3106 j 

Public aid by city 3152 ; 3153 1 



Railroads [confd] sec. 

bonds, bona fide purchaser 

protected n. 14, 3152 

citv may take 4090 

defense to n. 16, 3152 

interest 4091 

payment 4092 

borrowing money to aid, 

n- 17, 3152 
compulsory on city to act, 

n. 2, 3152 
councilm.en interested in 

railroad n.9, 3152 

donation, meaning n. 3, 3152 

by city n. 17, 3252 

election expenses 4093 

injoining subscription, n. 13, 3152 

levy of tax to pay n. 11, 3152 

machine shops, can not aid, 

n. 6, 3152 

petition for election 4088 

council must act upon 

n- 3, 3152; 40S9 

form 3153 

signatures, withdrawal of 

"• 5» 3152 

sufficiency n. 7, 10, 3152 

sinking fund to pay bonds . . 3152 
stock of railroad city may 

take n. i, 198 

subscription, terms of. .n. 20, 3152 

tax to aid 3152 ; 4091 

levy n.^ii, 3152 

township property liable to 

tax n. 22, 3152 

ultra vires as a defense, n. 15, 3152 
withdrawal of signature from 

petition n.5, 3152 

Process, how served on 3065 

Signals at crossings 4020 

injury at n. 2, 4020 

constitutionality of statute 

requiring n. i, 4020 

penalty for not giving 4021 

action to recover 4022 

attorney's fee . , 4022 

damages 4023 

school fund receives 4024 

Speed, regulated in cities, 

cl. 39, 42, n. I, 3106 
Street, use of by railroad, 

n. 13, 66; cl. 18, n. 9,3106; 
n. II, 3167; n. 7,3161; n.i, 3328 

Taxing, city may n. 11, 3156 

town may 3156 

Viaducts over street, 

cl. 40, n. 3, 3106; n. 28, 3161 
See Street Railways. 

Real estate 

Assessment by city assessor for 

taxes 3072 

City may purchase cl. 45, 3106 



942 



Real estate [cont'd) sec. 

Conveyance, city may . . .cl.45, 3106 
Execution, can not be sold up- 
on n. I, 3111 

Purchase, city may cl.45, 3106 

for sanitary purposes 3ii5« 

Sale authorized. .3111 and n. i, 3111 
appointment of appraisers . . 31 13 

request for 31 13 

appraisement 31 13 

deed 31 13; n. i, 3111 

mayor signs 3112 

oath of appraisers 31 13 

order for sale 3 113 

vote 3112 

Receipts 

Clerk's 3080 

for cancelled bonds 30S3 

Registry of 3069, 30S0 

Treasurer's, registry of 30S0 

Recognizance 

Form 3066 

When proceeds go to home 

for friendless women 6245 

Records 

Clerk keeps 306S 

Contractor must satisfy 3229/ 

Evidence of proceedings of 

council n. 2 to 4, 306S 

Nunc pro tunc entry n. i, 3068 

Parol evidence to show acts of 

council n. i , 306S 

Recorder (county) 

Trustee of county library 3784 

Redemption 

From city tax sale 3092 

town tax sale 3352 

See Street Improvement. 

Regrating 

City may prohibit cl. 29, 3106 

Register of orders 

C lerk keeps 3069 

Register of receipts 

Clerk keeps 3069 

Treasurer's 3080 

Removal 

Officer may be removed. . . .n. i, 158 

Replevin 

Lies for seal of city n. 2, 3102 

Replevying judgment 

Prisoner may at any time 3067 

Reports 

Clerk's monthly 3062 

Committee on drainage . .cl. 2, 3106 

Marshal's, of census 3032 

Mayor's, of fines collected .... 3063 
Sinking fund commissioners'. .3i;62<:/ 



Reports {cojii'd)\ sec. 

Street commissioner's 3074 

Treasurer of city, delinquent 

taxes 3087 

monthly 3083 

sale of bonds 31 19 

sale of land for taxes 3092 

sinking fund ....... ... . 3126c 

Rewards 

Police can not accept .3221/ 

Reservoirs 

Town may build cl. 3, 3333 

Residence 

Electors must have 84 

Not lost by temporary absence, 86 
Voters must reside in ward . . . 3222 
Where officer must reside .... 156 
See Elections. 

Resolution 

Ayes and noes in large cities 

called upon passage 305S 

passage of 3099 

Riding 

City may prohibit immoderate, 

cl. 17, 3106 
Town ma}' prohibit immoder- 
ate .. I cl. 6, 3333, 3338 

may prohibit riding on side- 
^\^alk cl. II, 3333 

Road supervisor 

Street commissioner has power 

of 3161 

Town marshal acts as such . , . 3367 

Road working 

In city 3156(1; 

In town 3355,3356 

Roof 

Overhanging street, cl. 18, n. 6, 3106 

Rubbish 

Removal of cl. 10, n. i, 3106 

Runners 

City may regulate at depots 

and wharves cl. 37, 3106 

Salary 

Aldermen 3059 

City officers 3105 

Common council fix 3105 

Councilmen 3059, 3105 

General laws for 118 

Increase during year illegal . . 3105 
Mayor, restrictions as to draw- 
ing 3063 

Must be certain in amount, n. i, 3105 

Ordinance, fixing, form 3105 

Payment of 3105 

Power of city over n. i, 3105 



943 



Sale SEC. 

Marshal's 3067 

Real estate by city 3111 

See Taxation. 

Saline fund 

School fund gets 183, 4325 

Saloons 

Beyond city limits n. 2, 3154 

Closing by ordinance .... n, 4, 3154 
Locked on Sunday, .cl. 13, n. 8, 3106 
See License. 

Salvation army 

Suppressing cl. i, n. i, 3106 

Sand 

Obstruction to street, 

cl. iS, n. 2, 3106 

Sanitary 

Infectious diseases cl. 24, 3106 

Real estate purchased for pur- 
poses of 31 15^'^ 

Removal of unwholesome sub- 
stance . . , , cl. 22, 3106 

Schools 

Accounts, auditor keeps with 

congressional township . . 4337 

auditor keeps of land in an- 
other county 4334, 4335 

congressional township of, 
how kept 4327 

correction of trustee's 445^ 

funds of divided townships, 

4435, 4437 

funds separated 4327 

inspection of trustee's . .4454, 4455 
miscellaneous school funds, , 4403 

record of 4442, 4441 

Acknowledgment of school 

mortgages n. i, 4381 

Action, see suit, below. 
Additional branches, examina- 
tion of teachers in, 

n- 7, 4425, 4502 

voters determine 4499 

Administration of school sys- 
tem. 4406 to 4464 

Adoption of text-books, see 

Books. 
Advertisement of unloaned 

funds 4352« 

Annexation, effect on school 

property n. 6, 3197 

Anticipation of revenues, 

n. 8, 4441; n. 1,4442; 

n. I, 4470; n. 2, 4487a 
Apparatus, trustees provide. . . 4444 

See Furniture below. 
Appeals from director to trus- 
tee 4506 

expulsion of pupil n, i, 4506 



Schools {co7ifd) SEC. 
Appeal to county superintend- 
ent from trustee 4537 

contracts, concerning . . .n. 3, 4537 
courts, jurisdiction of . . n. 3, 4537 
dismissal of teachers. . . .n. 3, 4537 

district abolishing n. 7, 4499 

final 4537 

joint grade school n. i , 4446 

jurisdiction of courts. . . .n. 3, 4537 
location of school-house, 

n. 2, 4537; n. 4, 5,4499; 

n. 23, 4444 

notice of n. i, 4537 

power of county superin- 
tendent n. I, 4537 

private schools ........ .n. 3, 4509 

procedure n. i, 4537 

right to bring action, does 

not prevent 4429 

transfer n. i, 4473 

trustees discretion n. 5, 4499 

witnesses n. i, 4537 

Appeal to state superintendent, 

4429, 4538 

bond n, i, 4537 

notice of n. i, 4537 

procedure n. i, 4538 

rules 4538 

time n. i, 4537 

transcript n. i, 4537 

trial n. 2, 4537 

witnesses n. i, 4537 

Apportionment by state super- 
intendent 4477, 44S2 

auditor of state,when makes, 4484^ 
auditor's report of revenue 

ready for 447S, 4479 

diminished, when 44S1 

divided congressional town- 
ship 4480 

failure of auditor to report 

to, penalty 44S1 

how made 4477, 44S2 

instructions concerning same, 

n. 1,4479 

payments to counties 44S4 

printed statements of ...... 44S3 

sinking fund interest 44S7 

unapportioned balances 44S5 

when made 4477 

Apportionment by county au- 
ditor ". 44S6 

basis of ^ 4432 

county superintendent's duty 

as to 4432 

districts to, not made. . . .n. 3, 4499 
dog fund, see below, 
instructions to county audit- 
ors n . 1 , 4479 

method of making is valid, n. 1,4486 
report of state superintend- 
ent 4|S6 



944 



duty as to transfers . 



5' 



6,4473 



duty in election of county 

superintendent, 

n. 3, 4, 5, 10, II, 17, 4434 
fees for making loans 4382 

for transfer of congression- 
al fund 4337 

for sale of land. .4345, n. 2, 4391 
income of land, reports of re- 

ceiyed by 432S 

interest, duty as to ^yhen vm- 

paid 4383 

loans to himself yoid . . , n. 2, 4334 
loans fundfj 4370? 43S1 



Schools {cont'd) SEC. 

rules for making n. 4, 4486 

to%yn recently incorporated, 

n. 5, 44S6 

yalidity of n. i, 44S6 

Apportionment of loans 44^2 

Apportionment by trustee 
among schools of to\ynship, 

n. 3. 4499 
Appraisement of school lands I 

for sale 4344 

forfeited lands 435^^ 

land offered for mortgaging, 

4371,4373 

lands remaining unsold 435^ 

re-appraisement 435^, 4352^^ 

Appropriations, permanent, 

4408,4413, n. I, 4423 

state normal school 455^ 

Appropriations by county com- 
missioners because of defi- 
cit n. 2, 4336, 4399 

Assault and battery, teacher 

may be guilty of n. 9, 4501 

Astray fund belongs to 

schools n. I, 4335; 4335a 

Attorney, state superintendent 

may employ n. 3, 4413 

fees of, county must pay. .n. 5, 188 
Attorney-general, po\yer to 

bring suit n. i, 4435 

Auditor of county, acknowledg- 
ments, may take 4379 ■ 

accounts of congressional 

to\ynship, keeps 4327 

appoints township trustee, 

when 4440 

apportions reyenues in county, 44S6 
bids mortgaged lands in .... 4393 
bond of trustee, approyes, | 

4439, 4440 I 

bond of county superintend- ! 

ent, approyes 4424 

casting vote, gives, when . . . 4434 , 

certificate of sale, issues | 

when old one lost 4360 j 

deed for land sold, makes . . . 4395 J 
duty as to congressional 

funds 4333 to 4337 



Schools [coiifd) GEC. 

miscellaneous fund account, 4403 

distributes 44^4 

notice of deficits 4326 

of sale of lands . . 4391 

oaths, may administer 4379 

payments, makes to counties, 4484c/ 
penalty for failure to report, 4481 

as to miscellaneous fund.. 4405 
relator in suits, when . . .n. i, 4390 
reports condition of funds . . 4398 

of lands in adjoining 

county 4336 

revenue for apportion- 
ment 4478,4479 

resale, makes of land . . .4347, 4351 
sells mortgaged lands , .43S3, 4393 

school lands 4345 

statement as to number of 

children 4333 

suits, brings for deficits, 4355, 4390 

to recover possession of 

lands mortgaged . . . .4383, 4383^/ 
tax extends on duplicate. . . . 4468 
trustees' books, examines, 

4454, 4455 
warrant, draws for borrowed 

funds 4387 

waste, suit brings for 435° 

Auditor of state, draws war- 
rant for county funds 44^4 

for expense of state board of 

education 4423 

Ballots for sale of land, kind. . 4341 
Bank tax, part of school fund, 

4325, 1S3 

Bequests to schools 45^4 

bonds to aid 45^3 to 4516 

Bible not excluded from 4493 

decisions concerning use of 

in n. 3, 4493 

how used n. i, 4493 

Blanks, state superintendent 

prepares 44^5 

furnishing county superin- 
tendent with n. 3, 4433 

Board of county commission- 
ers, accounts of trustees, 

examines . .^ 4454, 4455 

boundaries of township, de- 
termine n. I, 4331 

deficit in funds, makes up. . . 4326 
dismisses county superin- 
tendent 4424 

examine report of auditor 

and treasurer 4399 

interest, pays up 4326 

lands, orders sold 4345, 43^8 

report concern'g loans, makes, 4JL00 
school-house, can not build, 

n. I, 4514 
school taxes, no control over, 

n. 3, 4467 



945 



Schools {::o!ifd) SEC. 

special sessions, power of 

at n. 11,4441 

vacancy in trustee's office, 

fill 4440« 

Board of education, see County 
Board of Education below; 
see State Board of Educa- 
tion below; see School 
Commissioners below. 

Bond on appeal 4538 

Bond, official, borrowed money, 

does not cover 4440;/ 

school board 4439 

school trustees 444^ 

superintendent of county, 

4424, 4464/, 4464^' 

wom.en's 454^ 

Bonds for library building. . . .4526/" 

tax to pay 45^6^ 

Bonds for school buildings. . . . 4488 
bequest, aid to ..... . .4514 to 4516 

by whom issued n. 7, 4488 

city may sell 4488 

consent of city council neces- 
sary 4491 

constitutionality^ of law, n. 3, 7, 44S8 

donations, to aid 45^4 to 4516 

injoining issue of n. 4, 4488 

legalizing issue of n. 6, 4490 

liability of trustees for . . n. 6, 4488 
petition for, not necessary to 

issue n. 2, 4488 

proceeds of, use 4489 

sale of by township trustee, 4516 
school commissioners may 

issue 4460, 4492rt 

special tax, to pay 4490 

township trustee may issue, 

when 4514 to 4516 

surplus revenue paid on .... 4492 

towns may sell 4488 

transferees taxed to pay .n. 5, 4488 
void, not, school-house lo- 
cated outside town. . . .n. 5, 4490 
Books, advertising for bids, 

4464^, 4464(? 
advertising for manuscripts, ^^6^d 

affidavit of bidder 4464*^ 

appropriations for expenses, 

4464?/, 4464/' 
attorney's fee, when recov- 
erable, 

4464/, 4464/(', 4464;^, 4464^' 

bids to furnish 44641^, 4464c 

conditions of 4464Z' 

investigation of 44^4^ 

opening 44^4^ 

rejection of 4464/' 

bidder, interest of 4464/j 

bond of county superintend- 
ent 4464/, 4464^ 

branches of study 4464« 

69 



Schools {C072f'd) SEC. 

cash, sold for 44^4^ 

change of 443^ 

constitutional, act of 1889 is, 

n. I, 4464.^ 
contract for printing man- 
uscript 4464c/ 

state not liable on 4464^? 

not to be impaired, a.^6^cc 

contractor, damaged books, 

charged with 4464^ 

payment 4464^, 4464/e 

reports to . . . . , , . . 4464X' 

requisitions upon 44^4^ 

re-shipment to 4464^ 

ships books 4464^, 44642^ 

copyright, gift to estate 4464^^ 

county board of education 

considers 443^ 

county superintendent, laws, 

distributes 4464^5 

liability for failure to 

report 4464A' 

makes requisition for . . . ,4464^ 

notifies trustees 44^4^ 

reports to contractor 4464/C' 

sells, 4464,^ 

suits, brings .4464/ 

damaged, returned to con- 
tractor 44642^ 

debt, can not be contracted 

for by trustee 4464?/ 

defective, returned to con- 
tractor 44642^ 

effect of act of 18S9 n. i, 4436 

embezzlement 4464W, 4464.^ 

excessive charge for, penalty, 4464/ 

free, w^hen ^/^6^r 

furnishing 44^4^ 

grading 4464a 

grammar, advertisement for, 44640 

gift to state 4464^ 

history of United States, ad- 
vertisement for 4464c 

interest of bidders '..... 4464^ 

kind and requisites 4464a 

labels for 4464a« 

laws, distribution of 4464/^^ 

legislature may provide, n. 16, 4425 
number required, certificates 

^o 4464^ 

old books, disposition ol. . . .44640- 

orders for . , i^^iJT^ 44^4/ 

packages of, not to be broken, 44642: 

partisan, forbidden 4464a 

pay of contractor . . . .4464(7, 44646' 

of trustee 4464^ 

payments, failure to make . .4464.V 

report concerning 4464-^ 

physiology, advertisement for, 

44640 
poor receive free, 

4464/',; 4496a; 4496/-; n. II, 4444 



946 



Schools [cont'd) SEC. 

preser%'ed bv trustee, how. . .44642 
price furnished at to state, 

4464c/ 4464a 

to patrons 44^4^ 

printed on cover 4464^7 cz 

trustee liable for 4464^ 

printing, contracts for ^^6^d 

proclamation of governor. . .4464/" 

publishing, state may 44641^ 

receipts for books 4464^7; 4464^ 

repeal of laws 4464^ 

report of sales 44^47 

report of sales, failure to 

make ^/[6^u ; 4464/ 

of county superintendent 44647^ 

of trustee of sales 4464/^ 

to contractor 4464^' 

requisitions for books, 4464/'/ 4464^ 

limited 4464i> 

sectarian forbidden 4464:: 

shipment, how made 4464^ 

size 4464^ 

spelling book, advertisement 

for 4464c 

state board of education a 
board of commissioners. , .4464(1: 

duties 4464^ ; 44646' 

may sell old books 4464^?" 

state superintendent makes 

requisition for books 4464^^ 

prints and distributes laws,4464Z'^ 
supplemental act of 1891 . . . .4464CC 

suit against trustee 4464/^ 

against county superin- 
tendent 44641^ 

trustee certifies number re- 
quired 4464^?" 

compelled to use , . . .n.2,4464/^ 

damaged, returns 4464^ 

furnishes patrons 4464^ 

liability concerning 4464/; 

overcharging .4464/ 

pay 4464^' 

pa^-ment over of money 

received 4464/^ 

personally liable 4464'/ 

procures books 4464_?' 

reports payment 4464-y 

reports number on hand . .4464J 

reports number sold 4464$' 

requisitions for, makes. . , .4464^^ j 

uniform use made of 4464J ', 

use of to be uniform 4464J 

Branches taught, district meet- 
ings determine 4499 

German 4497 

what shall be taught . . .4497; 4499 
Boundaries of township, how 

regulated 4331 

Bureau of statistics,county super- 
intendent furnishes statis- 
tics, 5720 ; n. 3, 4431; n. 4,5,4433 



Schools [confd) SEC. 

Buildings, see Houses. 
Calendar, as to term, week, 

month 4495 

Care of school property, 

n. 16, 17, 4444; n. I, 4509 
Cash sales of school lands, n. 2, 4393 
Certificate of liens on land .... 4375 
of purchase, 

4353; 4356; 4357; 4360 

Children, age ot 4472 

colored, how provided for. . . 4496 
enumeration of, 

4430; 4433; 4472 to 4476 
prizes to, of library stock . . . 3S03 
Charts, county board of educa- 
tion considers 4436 

Classification of schools. . . .n. 4, 182 

of pupils n. 14, 4444 

Colored children, convenient 
schools, entitled to, 

n. 2, 4496 ; n. 5, 1S2 
discretion of school, officers, 

n. 4, 4496 
distinction can not be made . 4496 

enumeration of n . 7, 4472 

equal privileges, must have, 

n. 3, 4495 
graded schools, may attend . 4496 
laws concerning, valid . .n. i, 4496 

separate schools for n. 9, 4496 

schools for 4496 

Commissioners, see Board of 
County Commissioners. 
See School Commissioners. 
Common council authorizes 

issue of bonds for 4488 

appoints school board 4439 

levies local tuition tax. . .n. 1,4469 

Conditional deed 449^ 

Congressional township, account 

of, how kept 4327 

apportionment of loans 

among 44^2 

boundaries of 4331 

care of lands of n. 16, 17, 4444 

children in, enumeration of . 4333 

funds of 4325 to 4337 

diminished, may not be. . . . 4486 

consolidated n. i. 1S3 

grant to, a contract n. 7, 18S 

lands of 43-8 to 4330 

revenue from, how appor- 
tioned 4480 

Contracts of trustees generally, 

n- i3» 4444 

complaint against, v/hat must 
show n. 18, 4437 

county board of education can 
not make n. 4, 5, 4436 

dictionaries, purchase of, 

n. 12, 4444 
emplloyment of teacher, n. 19, 4437 



947 



Schools {confd) SEC. 

house, school trustee makes, 

n- 2, 5, 4437 

hoAT made n. 13, 4444 

intent to bind township .n. 3, 4437 
interest of trustee in, forbid- 
den (R. S. 1S81, § 2049.) 

maps n . 13, 4444 

notes, see. 

old board may bind new board 

by ." n. 13, 4439 

powers to make 4437 ? 443^ 

teachers, see. 
Contributions to joint schools, 

n. 3, 4446; 4513 

Corporal punishment n. 9, 4501 

Corporations may be assessed 

for schools 183 

Corporations, school, distinct 

from civil . .n. 2, 4437; n. 2, 4438 
city is for school purposes. . . 4438 
designations in suit-. . . . .n. 3, 4438 

names of, generally n, 4438 

town is for school purposes. . 4438 
Costs, when not allow-ed in suit, 4535 
County liable for school fund. . 4326 
County auditor, see Auditor. 
County board of education, 

members of 4436 

contracts, can not make,'n. 4, 4436 
county superintendent pre- 
sides 4436 

course of study, prescribe, 

1^- 3, 4436 

duties 4436 

meetings n. 2, 4436 

members 443^ 

quorum n. 3, 4436 

rules, prescribing n. 3, 4436 

County commissioners, county 

superintendent, remove. . . 4424 
deficit, make good ...... n. 2, 4326 

funds, examines reports of . . 4399 
report condition of funds, 

4336; 4400 
sales of lands ordered by, n. 1,4345 
school-house, can not build, 

n. 1,4514 
school taxes, no control over, 

n.3, 4467 
settlement Avith school officer, 4399 
trustee's accounts, inspects, 

4454; 4456 

trustees, may remove 445^ 

See Board of County Commis- 
sioners. 
County institute, see Institute 

(County). 
County superintendent, ac- 
counts of trustees exam- 
ines 4454; 4455 

address of, sent to state super- 
intendent 4424 



Schools [confd) SEC. 

agent for sale of books, can 

not be 4424 

allowance of claim, effect, n, 3, 4433 
appeal, to and from. See 

appeal. 
apportionment,superintends, 

4432 ; 4434 

blanks for n, 2, 4433 

bond and approval, 

4424 and n. 20, 4424 

failure to give n. 19, 4424 

under acts of 1889 and 

1891 4464/; 4464^' 

books, see. 

chairman of county board of 

education 443^ 

charges preferred against .... 4434 
city schools, has no control 

over 44-9 

course of study, when maj^ 

arrange n. 5, 4429 

claims, collects 4435 

compensation 4433 

course of study,arranges, n. 5, 4429 
dismissal, appeal upon, n. 9, 4424 

dockets, examines 4435 

duties, generally 4429 

in examinations 44^5 

as to school fund 4435 

legislature may prescribe, 

n. 6, 4436 

election, when 4424 

ballots n. 10, 4424 

casting vote n,5, 17, 4424 

disputed n. 8, 4424 

evidence of .... n. 10, 4424 

illegal vote n. 16, 4424 

meeting of trustees to elect, 

n. 3, 4424 

mode of n. 4, 4424 

quorum necessary,. .. .n. 2, 4424 

record of n. 10, 4424 

regularity of n. 15, 4424 

reported to state superin- 
tendent 4424 

trustees elect 44-4 

turstee voting for himself, 

n. 18, 4424 

who elect him n.i 1,4424 

elevates standard of schools 4429 

eligibility .... n. 6; 4424 

enumeration, duty to make. . 4431 

examines teachers 4425 

fines, collects 4435 

forfeitures, collects 4435 

institutes, holds 4523 

interest, collects 4434 \ 4435 

laws, distributes ^^6^bb 

liability for refusing license, 

n. 13. 4425 

license fees, may collect 4435 

licenses, see Licenses. 



948 



Schools {confd) SEC. 

libeling 4436 

mandate to compel surrender 

of records n. 13, 4424 

member of county board of 

education 443^ 

mileage, not entitled to, n. i, 4433 

oath 4424 

office for n.3, 12, 4433 

opinions , gives 4429 

orders of state board, carries 

out 4429 

pay 4433 

postage n. 2, 4433 

private examination, can not 

make , . 4427 

private schools, reports con- 
cerning n. 2, 4431 

qualifications of. 44-4 

receipt, takes from successor 4428 
recognition by state superin- 
tendent, effect n. 7, 4424 

recognizances, collects 4435 

record, keeps 44-S 

records, examines 4435 

report of apportionment. . . . 4432 

contents 4431 

failure to make 443^ 

special 443i 

statistics 443 1 

to state board of education 442S 

transfers 446S 

resignation, v.-ithdrawal, n. 14, 4424 

revokes license 44^6 

school examiner, duties of 

performs 4424 

stationery, furnishing. . .n. 2. 4433 
statistics, report, 

n-3>443i; n.4,5, 4433 

suit, institutes 4435 

teacher, examines 4425 

toAvnship institute, attends . . 4429 

vacancy in office 4424 ; 44641' 

visits schools 4429 

duty to make n. 2, 4429 

number n. i, 4433 

women ineligible to . . . .n. i, 4540 
Course of study, how prescribed, 

n- 3, 4436 
by county superintendent, n. 5, 4429 
by trustee. . .n. 14, 4444; n. 5, 4429 

Courts, jurisdiction of n. 3. 4537 

not abridged by school lavv- . . . 4429 
Damages, trustee liable for ten 

per cent 4441 and n. 7, 4441 

Debts for future supplies, .n. 24, 4444 
liability of township upon, 

n. 8, 4441 
orders without consideration 

are void n. 20, 4444 

tax to pay 4471 

Deed, evidence of what. . . .n. 2, 4395 
for forfeited lands 4395 



Schools {confd) SEC. 

recording n. i, 4395 

sale, see. 

tender of n. 3, 4395 

trustee executes on sale of 

school-house 4511 

what is a conditional deed, 

n. 4, 4508; n. I, 451 1 
when title vests in state with- 
out 4397 

Deficit on toreclosure of mort- 
gage 4326 

in school funds and revenues, 4326 

Dictionaries, purchase of.n. 12, 4444 

Director, appeal from 4506 

appointment 4498 

death n. 2, 449S 

duties 4503 

election 4498 

excludes pupil 45^5 

house, has charge of 4504 

janitor, employs n. 3, 4504 

local agent acts as n. i, 4503 

meetings, presides at 45^3 

oath 449S 

removal 4498 

. repairs, makes 45^4 

resignation n. 2, 449S 

selection n. 2, 4498 

vacancv 4499 

visits schools 45^5 

Discipline, teachers' powers, 

i^- 4> 4505 
condv;ct out of school .... n. 4, 4505 
corporal punishment. . . .n. 9, 4501 
Distance to scliool must be 

reasonable n. 2, 4496 

Districts, abolished, 

n. 21, 4444; n. 7, 4499; n. i, 4437 

choice ot by patron n. 4, 4472 

corporation, was not n. 3, 4499 

council creates in large city, 

4458; 4460 

meetings in n. i, 4499 

called 4499 

persons forming 4472 

voters 4498 

Distribution of fund 185 

Divided school section, what 

trustee manages. ......... 4330 

transfer of power of. .4332 to 4336 
Division of revenue on forma- 
tion of town, 

n. 5, 4486; n.3, 44875 
Dockets, county superintendent 

examines 4435 

Dog fund, anticipating 4487^ 

distribution 4487^) 4487*^' 

explanation concerning 4487^ 

surplus 4487«, 4487^ 

tovv^n, v\-hen may take from 

township n. 3, 4487^ 

See Taxation. 



949 



Schools [confd) SEC. 

Donationsto build school-house, 

45H 

bonds to aid 4514 to 4516 

Doors must swing outward. . .4500^ 
Election, see Sale. 
Embezzlement, liabilitj^ for 

school-books 4464;c 

mixing funds, n. 3, 4442; n. i, 4441 

use of money is not n. 3, 4440 

Employment of teachers 4444 

Eminent domain, to appropriate 
land for school-houses, 

4517 to 4519 
Enumeration, age of pupils 

enumerated 4474 

attachment to schools 447^ 

change of schools, when al- 
lowed 4472 

choice of schools n. 4, 5, 4472 

colored pvipils. .4472 andn.7, 4472 
congressional in township, 

number in 4333 

county superintendent takes. 4430 
detaching from schools, .n. 4, 4472 

districts formed by 4472 

failure to make affects revenue, 4431 
filed with county superintend- 
ent ' 4475 

how made 4472 

minor, when of age n. i, 4472 

non-resident pupils n. 3, 4472 

oath as to 4475 

report as to to^vnship, in two 

or more counties 447^ 

residence of minor n. 2, 4472 

special report as to congres- 
sional township n. i, 4476 

state superintendent's report 

concerning 4409; 4410 

township in two or more 

counties 4476 

transferred person included, 

4472 and n. 6 4472 

trustee makes 4472 

when made 4472 

who may be enumerated, n. i, 4472 
Escheated lands, n. 4, 183 ; n. 7, 4325 
Estimate of expense of building, 4500 
Estoppel, acquiescence in sale 

of school lands n. i, 4354 

indebtedness, contesting, n. 15, 4437 
Estray fund, n. 4, 183 ; n. i, 4325,' 4325^ 
Examination, additional 

branches n. 7, 4425 

amusement, not for. . . .n. 10, 4425 

conduct of n. 2, 4427 

county superintendent makes, 4425 
evidence of character, n. 2, 10, 4425 
incompetency to govern 

school n. 10, 4425 

judicial act in granting license, 

n. 12, 4425 



Schools [cont'd) SEC. 

license, see. 

private forbidden 4427 

professional license, 

4472 and n. 9, 4425 

public must be 4427 

record of license 4428 

special fitness. . .n. 4, 5, 4425; 4502 

traffic in questions 4421^ 

when not necessary 4425 

who should make n. 11, 4425 

Execution of process , 4536 

Expenditure, record of kept by 

trustee 4442 ; 4441 

Expulsion of pupil 4505 

appeal from 45o6 

by trustee of town or city, 

"•'^1,4505 
teacher, see. 

truancy n. i, 2, 4505 

Fees, deducted from school fund, 

can not be n. 3, 4, 4325 

auditor, for transfer of con- 
gressional funds, township, 4337 

auditor's for sales 4345 

loans, rate for 4382 

part of tuition fund 4325 

treasurer's for sales 4345 

Females' eligibility to school 

office 4540 

bond 4541 

validity of law n. i, 2, 4540 

Fines belong to school fund, 
183 ; 4325 and n. 5, 4325 ; 

(R.S.1881, § 4024) 
county superintendent collect, 4435 
Fletcher, Prof., death of. . n.2, 4406 
Forfeitures belong to school 

f^nd 183; 4325 

county superintendent col- 
lects 4435 

effect of n.3, 4347 

Forms, state superintendent 

prepares 4415 

book-keeping, superintends . 4416 
Fuel, director furnishes. . , .n.2, 4504 

Fund, account of 4327 

advertised for loaning 4352(^7 

animals impounded, proceeds 

to (R.S. i88i,§2643) 

baggage sales by county com- 
missioners, (R.S. /881, § 2901) 

bank tax 4325* 

clerk violating marriage act, 

(R. S.f88i, §5332) 
common school fund defined, 4325 
congressional township, 

4325 to 4337 
corporations maybe taxed for, 183 
county liable for. . . 186; 1S7; 4326 

auditor may sue for 4404 

commissioners, duties as to 

4399 ' 4400 



950 



Schools {cont'd) SEC. 

deductions from, recoverable, 
deficit in, notice of, n.4, 4325 

4326 and n. 2, 4326 

deficiency on sale of land 4352c 

dentistry, fines go to, 

(R. S. 1881, §4254) 
diminished, shall never be, 

184; 4325 
distribution and report as to, 4404 
from another county 4334; 4335 
election bets, penalties to 

(R. S. i88i,§ 4685) 

enhancing n.4, 4326 

escheats 183, n.7, 4325 

estray funds n. i, 4325; 4325^ 

expense of notes, 188 

fees of ofiicer can not be de- 
ducted from n. 3, 4, 4325 

fines against recorders goes 

to (R.S.i88i,§5937) 

fines generally 4325 and n. 5, 4325 

forfeitures 4325 

howr created 183 

interest re-invested, when.. 186 

county must pay 4326 

investment and distribution, 185 

inviolate 188 

liquor license n.6, 4325 

loans of, interest 4369 

'lost funds n. I, 4399 

mandamus to compel proper 

application n. 5, 4325 

miscellaneous fund, account 

of 4403 

policy of the law n. 4, 187 

principal and income of ... . 184 

property of, not taxable 6276 

railroad aid stock to, when, 

(R. S. 1881, §4073) 

re-adjustment 4337 

re-investmentfor county,when, 186 

rents distributed n. i, 4328 

report as to 4398; 4400 ; 4401 

saline fund 4325 

school lands belong to. ,n. 1,2,4327 

seminary fund 4325 

separation of n. i , 4327 

sinking fund, interest of to. . 4487 
State lands, damages go to 

(R. S. 1881, § 5242) 
State superintendent super- 
vises, 4413; 4411; 4409; 4410; 4408 

suit for loss of n. i, 4399 

swamp lands 4325 

taxes on corporations 4325 

two distinct funds n. i, 4325 

what constitutes 183 ; 4325 

Furniture, county board of ed- 
ucation, duty to 4436 

indispensable articles. . .n. 12, 4444 
providing private school 
with n.7, 4499 



Schools {confd) SEC. 

tax for , 4467 

trustee provides, 

4444 and n. 10, 4444 
General laws must be. .118; n. 3, 182 

German language taught 4497 

duty compulsory ... n. 3 to 6, 4497 

license of teacher 11 ■ 5? 4425 

Governor, member state board 

of education 4420 

Graded schools, admission of 

pupils to n. 15, 4444 

buildings for 444^ 

definition n. 14, 4444 

management 444^ 

pa}^ of teacher n. 15, 4444 

power to organize n. 14, 4444 

purchase of land for 444^ 

title, how held 444^ 

trustees establish 4444 

Hanging doors 4500a 

Highway, taking school 

grounds for n. 5, 4508 

Holidays, teacher paid for, n.6, 4501 
Houses, adjacent township, 

building with 4510 to 4512 

appeal from location of, n. 2, 4537 
appropriation of school 
ground for highway . .n. 5, 4508 

bonds for in large city 4460 

in city or town 4488 ; 4489 

care of, 

n. 1,4059; n. 2, 4510; n. 17, 4444 
civil town can not build, 

cl.17, n.i, 3333 
completion in city or town, 448S 
condemnation proceedings 

for 4517 to 4519 

conditions before building 

in city or town 449i 

control of township house 

within town n. 3, 4508 

county can not build, 

n. 3.4444; n. I, 4514 
custody of in trustee . . . n. 16, 4444 

debts, tax to pay 4471 

deed for, how made . . . .n. i, 451 1 

doors of. swing out 4500(7 

extra territorial n. 4, 4508 

formation of town, eff'ect up- 
on n. 2, 4508 

fuel for n. 2, 4504 

ianitor for "• 3, 4504 

leasing, trustee can not, n. 6, 4509 

location of n. 9, 4444 

appeal from n.4, 5, 4499 

is for trustee n. i, 4519 

within limits of corpora- 
tion n. 5, 4490 

mandate to compel location, 

n. 6, 4499 

petition for, n. 23, 4444; n. i, 4500 

to sell 4499 



951 



Schools [cont'd) SEC. 
possession of, who has . .n. i, 4504 
removal, optional witii trus- 
tee 4499 ; 4500 

repairing. . 4504 and n. 2, 4504 4499 

voters direct 4499 

sale of, when 45 1 1 

school commissioners nia^^ 

build n. 2, 4460 

school-house not owned by 

township n.22, 4444 

site for, proceeding to obtain, 

4517 to 4519 
special tax to build in citj- or 

town 4490 

surplus special revenue in 

city or town 4492 

tax for 4467 

title to, how taken 45o8 

conditional n. 4, 4508 

when township changed, 

n. I, 4508 
town may build and repair, 

cl. 17, 3333 
transfered person, liable to 

tax for n . 4, 4438 

trustee locates, .n. 4, 5, 4499; 4444 

builds n. 2, 5, 4437 

furnishes n. 10, 4444 

use for religious purposes, 

4509 and n. 3, 4509; 

4510 and n. I, 3, 4510 

for private school 4509 

report of trustee concern- 
ing n. I, 4509 

voters direct repairs 4499 

Indiana University, appropria- 
tion for n. 3, 4420 

Indigent children, books for, 

4496a; 4496^ 
Injunction against cutting tim- 
ber 4346 

prosecuting attorney brings 

action for n. 2, 4346 

Institute (county) allowance for, 4521 
pay of county superintend- 
ent n. I, 4521 

schools closed during 4522 

sessions of 4523 

Institutes (township) attend- 
ance compulsory ....n.3, 4520 

manner of holding 4520 

monthly sessions 4520 

pay for attending 4520 

teacher must take part,n. . .2, 4520 
trustee notifies teacher of, n. 1^4520 
Interest, accounts of, how kept, 4327 
board of county commission- 
ers look after 4399 

county liable for, 

4434 and n. 4, 4434; 4326 
county superintendent may 
collect 4435 



Schools {cont'd) SEC. 

county superintendent, pay- 
ments of, superintends. . . . 4434 

failure to pay 4383 

money unloaned, county pays 

on n. 3, 4326 

rate of 4369 ; 4393 

sinking fund interest distrib- 
uted 4487 

state superintendent may 

collect 4326 

when trustee not entitled to 

on fund n. 4, 4440 

Investments unsafe, duty to, 

n. I, 4400; n. I, 185 
Janitor, teacher entitled to, n.3, 4504 
Joint graded school, adjacent 

township building with, . . 4513 

establishment n. i, 4, 4446 

management n. 2, 4446 

title how held n. i, 4513 

trustees act as individuals, 

n. 5, 4446 
Judgment against trustee, dam- 

• ages 4441 

kind in action on loan 439^ 

lien on land held by certifi- 

ficate n. I, 4353 

rate of interest upon 43^9 

Judicial notice, name of town- 
ship n. 10, 4437 

Jurisdiction of courts over 

school matters n. 3, 4537 

Kindergartens 4497^' 

Knowledge and learning essen- 
tial to general government, 182 
Landlord, trustee of township 

is of school lands 433S 

Lands, adverse possession of, 

n. 4, 4328 
appraisement for school- 
houses 4517 to 4519 

congressional township, man- 
agement of 4444 

custody 432S 

of divided school section 

4330; 4332 

divided school section 433© 

drainage law, eftectupon, n.6, 432S 
income, report of trustee .... 432S 
landlord, trustee has powers 

of 433S 

leasing 4329 

sale of, see. 

substituted lands n. 5, 432S 

taxing when sold 43^4 

timber lands, conditions as 

to '• . • 4346 

Large city, school commission- 
ers, has 4458 

Laws, publication 44^7 ^o 4418 

Leasing school land, 

4329 and n. i, 4329 



952 



Schools [co;:i\:) ssc. 

Lecturing, state si^perintendent 

does 441 1 

Legalizing bonds n. 6, 4490 

sale of lands n. i, 4367 

surplus special school reve- 
nue 444S 

Legislature, power of 1^. 7? 1S3 

Levy of taxes for schools, need 

not be uniforin n. 6, 1S2 

in town .cl. 19, -3333 

Library in city and town, 4524; 4460 
bonds to construct in large 

city 4526/; 4526^ 

children, prizes of stock in 

same 3S03 

commissioners establish .... 4460 

documents for 441S 

free 4524 

management 443^ 

realty for 45^6 ; 4526a 

rules for 45^4 

state-prison, books for. ..... 4528 

tax to maintain, 

4524; 4525; 4526^; 4536c 

Library (township) books for. . 4527 
distribution of books for .... 4528 

documents 44^8 

families may use 453^ 

open Avhen 4533 

pay of librarian n. i, 4532 

place where kept 4532 

rules as to use of 453^ 

state prison, books use 4528 

tax to support n. 2, 4527 

trustee has charge of 4529 

See Libraries. 

License, additional n. 6, 4425 

antedating n. 10, 4425 

certificate, giving n. 14, 4425 

consecutive n. 8, 4425 

essential to emplovment, 

4501 and n. i, 4501 

examination for 4425 

expiration during term of 



school 



450J 



illegally issued . n. 6, 4425 

judical act of issuing , .n. 12, 4425 
length of time given for .... 4425 
liability of county superin- 
tendent for refusing, .n. 13, 4425 

life license 442- 

limited to county 4427 

loss of certificate of n. 3, 4425 

minors n. 3, 4501 

professional n. 2, 4422 

record of 4428 ; n. 15, 4425 

revoking 4426 and n. i, 4426 

school commissioners may 

issue 4460 ; 4464 

special 4502 ; n. 5, 4425 

state board grants 4422 

vested right in n. 2, 4426 



Schools {cont'cT) SEC. 
License fees, county superin- 
tendent collects 4435 

liquor n. 2,6, 4325 

part of tuition fund 43^5 

Lien of mortgage not recorded, 

n. 2, 4381 
tax inferior to school mort- 
gage, 

n-3,4393; ^.4, 4383; n. i, 43S0 

Liquor license fees n. 2, 6, 4325 

Loan, abstract of title 4370 

acknowledgments and oaths, 4379 

advertisement for 4352*^ 

affidavit of borrOAver 437^ 

apportionment of 4402 

appraisement 4371 ; 4372 

of mortgaged lands . . .... 4378 

appraisers 437^ 

bona fide purchaser n. i, 4381 

bond to protect loan 4375 

auditor makes 437^ 

loaning to himself. . . .n. 2, 4334 

authority to make n. 14, 4437 

certificate as to liens, 

4375 and n. i, 4375 
as to indebtedness. . . .n. 15, 4437 

collection on default 43831^ 

damages, -when recoverable. . 4386 

examination of 4399 

execution against borrower . 4390 

extra-territorial 4373 

fees for making ' 4382 

fund specified 4402; 4384 

inhabitants of county j^re- 

ferred \ 4373 

interest rate 43^9 

failure to pay 43S3; 4390 

irregularities, does not avoid, 

n- 2, 4375 
judgment for deficiency, form, 4390 

rate of interest on 4390 

liens 4375 

bond to protect loan against, 4375 

certificate as to 4375 

priority of 4380 

limit 4374; 4378 

miscellaneous account 4403 

mortgage, cancelling. . . .n. 3, 4381 

foreclosure of n. 6, 4383 

form 4385 

fund specified 4402 

indorse on of payment. . . . 4389 

recording n. i, 4381 

registry of n. 2, 4380 

release of without p;iy- 

ment n."5, 4383 

satisfaction of 4389 

See Mortgage. 

note, form 4386 

fund specified in 4402 

sufficiency n. i, 4386 

suit on by auditor 4383 



953 



Schools [cGut'd) SEC. 

oath of applicant 4376 

oaths, a'uditormav administer, 4379 

outside county 4373 

payment by borrower 43S*^ 

auditor must note . . . .n. i, 43S8 
made to count v treasurer, 

n. 2, 43SS 

to borrower 43^7 

personal security can not be 

taken for n. 2. 4370 

preferred borrowers 4373 

prior liens n. 3, 4375 

purchase-money retained as, 4358 

quietus on payment 43SS 

record of mortgage . . . .43S0; 4381 

rate of interest 43^9 

report of county commis- 
sioners 4400; 4401 

sale, see. 

satisfaction of mortgage .... 43S9 

suit for deficiency 439^ 

to recover possession 43^3 

surplus on sale 439-; 4394 

tax-title, priority of as lien, 

n. I, 4380 

time of 4377 

title papers 437o 

void, when. . .n. 2, 4334; n. i, 4370 
warrant to borroAver for 

money 43S7 

when due 43S3 

where may be made 4373 

Lucrative office, city school 

trustee n. i, 4439 

town school trustee n. 7, 4439 

Mandamus, admissionto schools, 

n. 8, 4472 
application of school funds, 

n- 5> 4325 

approval of bond n. 20, 4424 

conveyance of school-house, 

n. I, 450S 
delivery of books to succes- 
sor n. 6, 4441 

location of school-house, 

n- 23, 4444; n- 6, 4499 
records, delivery of ... .n. 13, 4424 
Manual training schools, city 

may build 4497 <^^ 

regulations concerning 4497<-' 

tax for 4497'- 

teacher for 4497./ 

Maps, contracts for are valid, 

n. 12, 4444 
county board of education 

considers 443^ 

Married women may borrow of 

school fund n. 5, 4385 

Mechanic's lien, can not acquire 

on school-house n. 25, 4444 

Meetings, additional branches 

determined by 4499 



Schools (coufd) SEC. 

annual, held 449^ 

cities and towns have none, 

n. I, 4499 

director elected at 4498 

election of teachers at, unau- 
thorized n. 2, 4444 

how called 449^ 

legality of, how settled 4499 

location of school-houses, 

n. 4, 4499 

notice of 4499 

petitions to trustees 4499 

protest against teacher . .n. 4, 4501 
repairs to school-house di- 
rect 4499 

school-house, may aslc for. . . 4499 

studies determined by 4499 

voters at, 4498 and n. i, 4498; 4499 
Mileage of county superintend- 
ent n. I, 4433 

state board of education .... 4423 
Minor, employment as a teach- 
er n. 2, 3,4501 

residence of n. 2, 4472 

when of age n. i, 4472 

Miscellaneous school fund, hov/ 

kept 4403 

distribution 44^4 

penalty against auditor as to, 4405 
Mistake, correcting in trustee's 

accounts 445^ ; n. 5, 4441 

Money, conversion by school 

officer n. 3, 4440 

title to n. 2, 4440 

Month, length of 4495 

Mortgage, action to cancel, n. 3, 43S1 
description of land, 

n. I, 4385; n. 10, 4392 

foreclosure n. 6, 4383 

form 4385 

fund specified in 44°- 

indorsement upon 4389 

lien of prior to tax lien. .n. i, 4380 
merger of . .n. 10, 4392; n. 2, 4383 
presumption as to ownership 

of land n. 2, 4385 

priority of 4380 

recorded, when so considered, 

4380; n. I, 43S1 

registry of n. 2, 43S0 

satisfaction, entry upon. .n. 1,4389 
subrogation of purchaser un- 
der n. 9, 4392 

tax-title, superior to . . . .n. 4, 4383 
void, when . . .n. 2, 4334; n. i, 4370 

wife may borrow n. 5, 4385 

wife's signature n. 3, 4385 

See Loan. 

Music may be taught n. 7. 4496 

Neglect of duty bN' trustee, pcu- 

'ilty '. H5- 

Night schools 4-497 i-"* 4497^^ 



954 



Schools [cont'd) SEC. 

Non-residents, admission to 

schools .... n. 3, 4472 ; n. 4, 4490 

payment of tuition tax . .n. 4, 4490 

Notes in borrowing school fund, 4386 

fund specified in 4402 

sufficiency n. i, 43S6 

Notes, authority to execute, 

n. 10, 14, 4437 

bank deposits n. 13, 4437 

city may execute n. 10, 4438 

executed by trustee without 

authority n. i, 4438c 

power to give, 

n. 8,4441 ; n. 19, 20, 4444 
school commissioners may 

give n. 2, 5, 4460 

void, Avhen ,n. 12, 4437 

Notice of sale of land 4345 

to teachers of institute . .n. i, 4520 
Numbering school-houses .... 4494 

Oaths, administering n. i, 4539 

school officers may 4539 

Officers, Avomen may be 454° 

Opinions, county superintend- 
ent gives 4429 

state superintendent gives, 

4408 and n. 2, 3, 4408 
Patrons of school, petitions of. 4499 
protest against teacher . .n. 4, 4501 
selecting teacher, not author- 
ized to make n. 2, 4444 

Pay of city or town superintend- 
ent n. 1.4445 

county superintendent 4433 

state board of education .... 4423 
Payments to school fund, fail- 
ure to make 4355 

auditor of state pays to 

county 4484 

indorsement on certificate, 

4362, 4389 

quietus for 4361, n. 12, 4392 

to whom made , 4361 

Paupers, see Poor, 
Penalties, auditor failing to re- 
port 44S1 

county superintendent failing 

to report 443^ 

trustee, corrupt interest in 

contracts n. 13, 4444 

embezzlement n. 3, 4442 

failure to report 445© 

failure to serve 4453 

neglect of duty 4452 

Petition of patrons generally. . 4499 

to sell land 4339) 43^6 

Poor children, books for 4496a 

county commissioners pro- 
vide for 4496/^ 

enumeration of n. i, 4496a 

matron of orphan asylum, 
duties of 4496a 



Schools [confd) SEC. 

Private schools, public funds 

can not be used for. . . .n.4, 4509 
report concerning . . . .n. i, 2, 4509 

school-house used for 4509 

Process, how served 453^ 

Professional license 4425 

Property, title to, . n. 12, 4438 ; 4508 
sale of without, effect of ... . 4367 

trustee cares for 4444 

trustee sells, when 45 1 1 

Prosecuting attorney, action for 

injunction, brings . . . .n. 2, 4346 
investigates failure of title .. 4367 

sues auditor 44^5 

suits, brings 44^3 

Protest against teacher ...... 4501 

opportunity for n.4, 4501 

Public square used for school- 
house 3386 

Pupil, authority of teacher 

over n. 3, 4, 4505 

expulsion of, 

n. II, 4501 ; n. I to 4,4504; 

4505; n- I) 4506 
punishment of ... .n. i, 9, 11, 4501 
refractory, expelling . . . .n. i, 4505 
rules and regulations for, 

n. II, 4501 

truant, expelling n. 2, 4505 

violation of rules n. 11, 4501 

Purchase of land, certificate of, 

4353> 4365 
rights of person making . . , , 4354 
Questions for examination, how 

prepared n, i, 4421 

traffic in 4421a 

Quietus, auditor issues 4361 

repayment of loan 4388 

Quieting title, when may be 

had n. 12, 4392 

Races, no discrimination be- 
tween allowed 4466 

Real estate, title in school cor- 
poration 4508 

Receipts, record of kept by 

trustee 444I5 444^ 

Record, appeals, 

n. I, 4537; n. I, 4538 
county board of education, 

n. 3, 4436 

county superintendent 4428 

deed 4395 

examination by county super- 
intendent 4435 

mortgage ,. 4380 

receipts 4442, 4441 

sale of lands 434^ 

school commissioners 4462 

trustees 444^ 

state board of education , . . . 4420 

transfers n. 6, 4473 

Recorder, fees for making loans, 4382 



955 



Schools {co7ifd) SEC. 

Redemption of forfeited lands, 

n. 3. 4346 
Refractory pupil, see Pupil. 
Religious beliefs not a subject 

of inquiry n. 2, 4493 

Renioyal of county superinten- 
dent of 4434 

director of 449^ 

scholar, of 4505 

school-house, of 4499 

teacher, of 4501 

trustee 445^ 

Rents, deduction from tuition 

fund 432S 

ho^v paid 43^9 

liability of county for. . .184 to 186 

payable in adyance 43^9 

payment to county 43^8 

report concerning 4328 

Repairs, voters direct 4499 

See Houses. 
Reports of county auditor, 
auditor to state superinten- 
dent 4478 

contents of 4479 

failure to make 4481, 4404 

concerning school funds .... 4398 
county commissioners exam- 
ine'. 4399 

division of funds of divided 

townships 433^ 

names of trustees and county 

superintendent 4424? 4440 

revenue for apportionment, 

4478, 4479, 4486 
Report of county commission- 
ers. 

condition of funds 4400 

recorded 440i 

Report of county superintend- 
ent. 

annual 443^ 

apportionment 4432 

basis of apportionment 4432 

contents 4431 

enumeration 4431 

financial and statistical .... 4450 

licenses granted 4429 

statistics, furnishes 4431 

transfers 4468 

Report of state superintendent. 

to governor 4409 

to legislature 4410 

may require reports of offi- 
cers 4414 

Report of teachers. 

contents 4449 

must make 4449 

penalty for not making 4449 

private school 4509 

Report of transfers must be 

made 4473 



Schools [confd) 
Report of trustees. 

annual 

contents 

copy sent to state superin- 
tendent 

county commissioners exam- 
ine n. II, 

enumeration 4475? 

financial and statistical, 4441, 
income of lands 

penalty for failure to make. . 
school land 

to county superintendent . . . 
Re-sale of forfeited lands, 

n. I, 4347, 
Residence of county superin- 
tendent. .. .n. 6, 4424; n. I, 
children enumerated, 

n-2, 3, 7, 
city or town school trustee, 
n. 4, 
Resignation of teacher. . . .n, 8, 

trustee n. 3, 

Revenues, accounted for by 

trustee 

anticipating 4442 ; n. i, 

apportionment among schools, 

see Apportionment, 
distribution of, to counties . . 
division on formation of 

town n. 4, 4438; n. 2, 

dog fund, see; see also Taxa- 
tion, 
equalization of state's, con- 
stitutional, n. 3, 4328 ; n. I, 
lands of surplus fund, how 

sold 

local tuition, how applied, 

4469, 

special school 

state's, how paid n. 2, 

surplus, special school. .4447, 

tuition revenue n. 2, 

use of state's n. 2, 

Revocation of teacher's license, 

see License. 
Rules and regulations, adop- 
tion 4460; n. I, 

when unreasonable n. 3, 

Sale of mortgaged lands 

appraisement, more than one, 

n. I. 

amount, sale for more than 

due n. S, 

bid in by auditor, Avhen, 

4393, and n. 4, 
credit, when can only be 

made upon 

deed lor 

deed, when unnecessary .... 
description of land sold, n. 10, 
division of lands sold..n. i. 



4443 
4441 

4441 

4441 
4476 
4450 
4328 

4451 
4328 

4450 
4344 
4540 

4472 

4439 
4444 
4439 

4441 
4470 

4484 
4508 



4486 

4368 

4470 
4467 
4325 
4492 
4442 
4442 



4501 
4537 
4392 

4393 

439- 

4393 

4393 
4395 
4397 
4392 
4392 



956 



Schools {confd) SEC. 

law governing n. i, 4383 

manner of making , . . . 4392 

mergerer of mortgages in, 

n.i2, 4392; n. 2. 43S3 

notice of n. 1,3, 4391 

offer n. 7, 4392 

power to make .n. i, 5, 4392 

quieting title n. 12, 4392 

re-appraisement. .n. i, 4393 

record of deed 4395 

redemption n. 3, 4346 

regularity of n. 4, 4392 

several tracts, how sold, n. 11, 4392 
statement and record of, 

4396 and n. I, 4396 
statute must be strictly fol- 
lowed n. I, 43S3 

subrogation of purchaser, n.9, 4392 
suit for deficiency, 

n. 4. 4390; n. 3, 4393 
surplus . . 4392 and n. 2, 4393, 4394 

terms 4393 

title of purchaser not war- 
ranted n.3, 43S3 

when made 43S3 

Sale of school lands 4345 

appraisement by trustee.... 4344 

re-appraisement 4352 

auditor gives quietus 43^1 

auditor and treasvirer con- 
ducts 4345 

ballots used in voting upon 4341 
board of county commission- 
ers, orders.. 4345 and n. i, 4345 
certificate of result of elec- 
tion 4353 

purchase 4353 

assignment 435^ 

defective 4357 

purchase deed upon 4357 

effect 4353 

lost 4360 

recording 4353 

when delivered 4353 

deed, how executed 4365 

assignment of certificate . . 4357 
not executed until full pay- 
ment 4358 

recording 4363 

when issued 4353 ; 4363 

election, as to 4339 to 4344 

estopped to claim sale void, 

n. I, 4454 
fees of auditor and treasurer, 4345 

forfeiture and re-sale 4347 

eftect n. 3, 4347 

how prevented -1347 

how made 4345 

injunction to preserve timber 4346 

legalized 4364; n. i, 4367 

minimum price 4344 

notice of election, for 4339 



Schools {confd) SEC. 

of sale 4345 

order for 4344; 4345 

payment made at anytime. . 4359 
deferred, when reported.. 4346 
indorsement of, where .... 4362 
penalty for failure to make, 4355 

where made 43^1 

petition for election 4339 

recording 4340j 43^6 

re-sale, not necessary for, 

n. 3, 4344 

salcAvithout election 43^6 

withdrawing name from, 

n. I, 4366 

possession after sale 4354 

private, by auditor, when, 

4351 and n.i. 4351 
purchase-money is a loan, 

when 435S 

purchaser, possession by. . . . 4354 

injoined, when 434^ 

rights of, if title fails 43^7 

waste, when liable for .... 4349 

quietus 43^1 

receipt of purchase-money. . 4361 
purchase-money in full . . . 4362 

re-appraisement 435-^ 

redemption n- 3) 434^ 

re-sale, how made 4344 

surplus 4347 

when made 4347 

result of election, majority 

vote ..^ ." 4342 

rights of purchaser 4354 

surplus revenue lands, of. . . . 4368 

taxation of lands sold 43^4 

terms 434^ 

timbered lands, conditions as 

to 4346 

title, when complete 4365 

failure, procedure 43^7 

when vests in state. . . .n. i, 4344 
treasurer's and auditor's du- 
ties 4345 

trustee, duties 4344 

vote, when necessary 4339 

when not necessary 43^6 

waste, suit for 435© 

where takes place n. 2, 4345 

Sale of lands bid in by auditor, 

4393, 4394 
deed for, to purchaser. ...... 4395 

how made 4394 

statement concerning 439^ 

M'hen title vests in state, 

4397 ■• n- i> 4344 
Saline lund. 

belongs to schools, 1S3, 4325 

School commissioners, board 

ot" 4457 to 4464 

bonds issue and sell, 

4460, 4492«, 4526/ 



957 



Schools [cont'd) SEC. 

official 4457 

certificates of members 4459 

districts, maj change 445^ 

duties and powers of 4460 

election of 4457 

library, establishes, 

4460, 4526^-, 4526c 
license to teacher, issuing. . . 4460 

loans, may make 4464 

meetings of 4462 

notes, may give n. 2, 5, 4460 

oaths of 4457 

organization of 4459 

pay, get none . 4462 

poll-tax, can not levy,. . .n. i, 4460 

president of 4459 

receipt to county treasurer. .4526c 

quietus on 4526ir/ 

record, keeps 4462 

rules and regulations, adopt, 4460 
school-houses, may build, n. 2, 4460 

school laws govern 44^3 

secretary and treasurer of. . . 4459 

superintendent, appoint 4460 

taxes, levy 4460 

how collected for 4461 

teachers, employ 4460 

term of office 4459 

treasurer of 4459 

gives bond 4460 

vacancies, how filled 4459 

School corporation , 443^ 

name of 4437 

School corporation, cit}^ is. . . . 4438 
process, service on, 4536, n. 3, 3063 

town is 4438 

School director, election of. . . . 4498 

appeal from 4506 

appointment by trustee, when 4498 
exclusion of pupils by, limited, 4505 

fuel and repairs, provide 4504 

president of school meeting 

is 4503 

removal of, how 4498 

school-house, has charge of. 4504 
trustee, communicates v/ith, 4503 

vacancies in 4499 

visitations by 45^5 

School-house. 

See House above. 
School lands. 

See Lands above. 
School laws. 

See Laws above. 
School section divided by town- 
ship lines 4330 ; n. 7, 188 

substitute 4330 

See Lands above. 
School trustee, township trustee 

is 443S 

accounts and receipts 444^ 

corrected 445^ 



Schools [confd) SEC. 

examined 4454, 4455 

advancing funds, re-imburse- 

ment n. 11, 4501 

annual report 4443 

anticipating revenue . . . .n. i, 4442 
apparatus for schools, furnish- 
ing- • 4444 

appeal from 4537 

assessm.ent of damages. . n. 7, 4441 
bond and approval, 

4439^ 4440» ^^^ i^- i^ 444° 
books, when subject to exam- 
ination 4454 

See Books above. 
borrowing monej^, 

n. 8, 4441; n. 19, 20, 4.444 

bribery of (R. S. 1881, ^ 2051) 

contest n. 9, 4439 

contracts, interested in, 

(R. S. 1881, § 2049) 
correction of books of. . , . n. i, 4456 
county superintendent elects, 4424 
custody of school propert3% 

n. 16, 4444 
director, appoints, when 

4498, and n. 2, 4498 

duties 4441, 4444 

as to election 4339 

as to revenue 444^ 

neglect of 445- 

educational affairs, has charge 

of 4444 

election of n. 8, 4438 

enumeration, must make, . . . 4472 

See Enumeration, 
expenditures, record of, keeps, 

4441 to 4443 
fine, lor failure to serve. .... 4453 
graded schools, may establish 4444 
independent of town trustees, 

n. 3, 4441 

injunction, miay bring, 4346 

joint graded school with city 

or town 4446 

lands of congressional town- 
ship, sees after 432S, 4444 

lands, duties as to 432S to 436S 

leases land of township, 

n. 2, 4329; 4330 

levies tax to pay debts 4471 

liability to teachers, for pay 
of, n. 1,2, 4441; n. 3,4486; 

n.2, 10, 4501 

library, has charge of 45-9 

loans, power to bind to^vnship 

for . . . , n . 8, 4441 ; 4438^.' ; 4438r 

petition concerning 4438^ 

mandate to compel delivery 

of books n. 6, 4441 

member county board of edu- 
cation 4436 



958 



Schools {confd) SEC. 

misdemeanor, for neglect of 

duty n. 4, 4442 

mistake in settlement. . .n. 5, 4441 

mixing funds n. 7, 4438 

name of reported to state 

superintendent 444° 

neglect of duty, liability 4452 

notice of days for business . .4438c 
notifies teacher of township 

institute n. i, 4520 

numbers schools 4494 

office of, lucrative n. 7, 4439 

officer de facto n.4, 4441 

pay of 4439; 4464^^ 

penalty, liable for n. 7, 4441 

petition for sale of land, re- 
cords ...4340; 4366 

powers over schools n. i, 4444 

property, has care of 4444 

sale of by 451 1 

record of his proceedings , . . 4442 

removal n. 6, 4439 ; 4456 

reports to county commis- 
sioners 4441 to 4450 

contents 445^; 444^ 

copy sent to county super- 
intendent 444T 

failure to make 4451 

files with county superin- 
tendent 4441 to 4450 

lands of township, con- 
cerning 4328 

teachers to make to 4449 

transfers 4473 

when to make n. 2, 4443 

revenue for tuition, duties 

as to 4442 

former acts legalized 4448 

schools, establishes 4444 

school-house, contracts for, 

n- 3> 5> 4437 

numbers 4494 

sells 45 1 1 

deed for executes 45 n 

school township, trustee of is, 4438 
special revenue, receives .... 4441 

special tax, levys 44^7 

statement, yearly, must make, 4443 
suit against, 

4430 ; 4441 ; n.6,4438 ; n.4, 4437 
brings against predecessor 

n.6,4438; n.4, 4437 

tax, annual levy makes 4469 

special levy to pay debts. . 4471 

teachers, employs 44445 450i 

dismisses on petition.... 4501 
himself can not employ as 

n. 5> 4444 
title to township money has, 

n. 2, 4440 

transfers, reports 4473 

tuition revenue receives .... 4441 



Schools {confd) SEC. 

vacancy in office, how filled, 

n. 5, 4440; 4440«; 4439 
voting for himselt, can not, 

when n. 18, 4424 

vouchers returns with report, 4441 

School trustees, board of 4439 

abolishment of office of, n. 10, 4439 

accounts, must keep 443^ 

board of. . . .4439; 4440; n. i, 4489 

city has 4439 

duties of 4439 

election of 4439 

contest over n. 9, 4439 

one of civil town n. 3, 3313 

tie vote n. 8, 4439 

time of n. 2, 4439 

graded schools, establish .... 4444 
independent of council, n. 3, 4441 
joint graded schools, estab- 
lish 4446 

liability of for bonds . . . .n.6, 44S8 

lucrative, is not n. 2, 90 

misapplication of funds, n. 12, 4439 
old board may hire teachers 
for new, 
n.2, 4445; n.13, 4439; n.8,io, 4501 

organization of 4439 

pay of members, 4439 and n.4, 4439 

president of 4439 

reports to county commis- 
sioners 4441 

residence of members . .n.4, 4439 
resignation of members .n.3, 4439 
school superintendent em- 
ploy 4445 

secretary of 4439 

special revenue, manage .... 4445 
settlement not conclusive, n.3, 18S 
suit on treasurer's bond, n. 14, 4439 

term of office 4439 

treasurer of 4439 

vacancies , . . 4439 

School, admission to, mandate 

to compel n. 8, 4472 

attachment to, when made . . 4472 
changing, when allowed .... 4472 
city exempt from control of 

county superintendent. . . . 4429 
colored children entitled to, 

n.i to 4, 4496 

discrimination n. 26, 4444 

house, see House above. 

janitor for n.3, 4504 

kindergartens 4497*^ 

lands, see Lands above. 

location of 4444 

manual training. . .4497(f to 4497^/ 

night 4497^ to 4497c 

number of 4444 

regulations for, enforcement, 

n. 7, 4497 
section n. 7, 188 



959 



Schools {confd) SEC. 

state institutions n. i, 182 

terms must be equal . . . .n. i, 4494 
tuition tor, see Tuition belowi 

uniform, must be n. 3, 1S2 

School year begins, when 4499 

Seal, state superintendent uses, 4420 
state board of education has. 4420 
Seminary fund belongs to, 183; 4325 
Sinking fund, interest distrib- 
uted 44S7 

Special tax, levy must be made, 

n. 3, 4490 
State board of education form- 
ed 4420 

books select, see Books above. 

by-laws, may adopt 4421 

duties of 4421 

expenses of 4423 

members of 4420 

meetings of 4420 ; 4422 

orders carried out by county 

superintendents 4429 

pay of m.ember of 4423 

president of 4420 

record of 4420 

seal of 4420 

secretary of 4420 

state university, trustees of 

appoint (R. S. 1881, § 4565) 

teachers' certificates, grants, 4422 
State normal, appropriation to, 

n. I, 4482 
Statistics, furnished by state 

superintendent 44^0 

Statute of limitations, when 

does not run, n.4, 188 ; n.17, 4437 
Studies, duty of trustee as to, 

n. I, 4497 

additional n. 2, 4497 

algebra n. i, 4497 

district meetings determine, 4499 

German n. 3 to 6, 4497 

Latin n . i , 4497 

music . . - , n. 7, 4497 

order of n. 3, 4497 

teacher's contract to teach, 

n.4, 4497 

what shall be taught 4497 

what teacher examined in. . . 4435 

See Branches above. 

Subrogation, purchaser under 

mortgage n. 9, 4392 

Succession to school property, 

n. 1,4437; n.4, 4438 
Suits, auditor may bring, when, 4383. 

city, against or for 443^ 

complaint, Avhat must show, 

n. 18, 4437 

costs 4535 

county superintendent may 
bring, when "'. 4435 



Schools {co?ifd) SEC. 

how brought, 

4534; n- 3. 7 to 9,4437; n.i, 4534 
mandate can not take place 

of n. II, 4437 

process, how served, 

n. I, 4536; n. 22, 4437; n.3, 4438 

right to bring 4429 

statute of limitations, 

n- 17, 4437; n- 4. 188 

town, for or against 4438 

township, for or against .... 4437 
Superintendent of city, how 

elected 4445, 4460 

duties 4445 

V^y 4445 

Superintendent of county, see 

County Superintendent. 
Superintendent of public in- 
struction, appeals to 4538 

apportionment, prints state- 
ment of 4483 

balance of, duty as to 4485 

normal school fund, of. . . . 4556 
revenue (of), makes, 4477 to 4482 
arrest, privileged from 

(R. S. 1881, §2658) 
attorney, may emploj' . .n, 2, 4413 

blank forms, furnishes 4415 

books, duties as to, see Books, 
book-keeping, prescribes 

forms of 4416 

clerks of 4408 

salary of 4419 

counties, must visit 441 1 

county auditor's books, ex- 
amines 441 1 

defaulting, brings suit 

against 44^5 

school revenue, reports, 

4478 to 4481 

penalty for failure. 44S1 

county superintendents re- 
port to 4428, 4429 

names of, reported to .... 4424 

documents, supplies 4418 

duties 4408 

election of 4406 

expenses paid 4412 

funds, supervises 4413 

deficit in, duties as to 4326 

diminution of county,when, 44S1 

normal school, to. .'. 4556 

report to, as to divided 

township 4336 

suit for, may order 4413 

general assembly, i-eports to, 4410 

governor, reports to 4409 

instructions, superintendent 

furnishes 441 q 

interest, looks after 4326 

lectures 441 1 

libraries, furnishes books to, 44 iS 



960 



Schools {conVd) sec. 
member of state board of ed- 
ucation 4420 

opinion, gives n. 2, 3, 4408 

normal school, is trustee of. . 4543 

oath of 4407 

office provided for 4408 

president of state board of 

education 4420 

prosecutor, superintendent 

may direct when 4413 

reports from. 4409, 4410, 5571 

printing and distribution 

of 5573 

reports to, 

4336, 4346, 4401. 4414' 4424. 
4428, 4429, 4440, 4446, 4478 

to 4481, 4582 

salary of .44195 4927 

school law^s, prints and dis- 
tributes 4417? 44641^^ 

school officers, must meet. . . 441 1 

opinions, gives to 4408 

schools, manages business of, 4408 

seal, uses 4420 

session laws, gets copy of . . . 5594 
state board of education,mem- 

ber of 4420 

state prison libraries, duty as 

to 6147 

state university, reports to , . 4583 

is visitor of 4577 

statistics, furnishes 44^0 

suits, causes to be brought 

4413, 4405 
teachers, must counsel Avith, 441 1 

term of office 189 

commencement of 4407 

traveling expenses of ...... . 4412 

visits counties, 441 1, and n. i, 441 1 
Surplus on sale of land, disposi- 
tion of 4392 

special revenue 4447 

Surplus revenue fund, sale of 

lands of 43% 

belongs to schools 183 

investment of 43^8 

Swamp lands belong to school 

fund 183, 4325 

Taxes, annual levy 44^5 

assessment 4468 

auditor's duty as to 4468 

bonds for school buildings, to 

pay 4490 

buildings, erection of 4467 

expenses for 4467 

tax-payers may advance 

money for 44^7 

collection 4468 

in large city 4461 

expense of schools, for 44^7 

fuel, for 4467 

legalized in 1872 n. i, 4465 



Schools [confd] SEC. 

levy, who makes, 

n. 2, 4467; n. I, 2,4469; 

n. 2, 4490 

in large city 4460 

limit in large city 4460 

special tax 44^7 

to pay debts, obligatory, n.3, 4490 

library bonds 4526^' 

lien n.3, 4392 

-local tuition 4469 

manual training school 4497/^ 

management of, by trustee. . 4470 
poll, school commissioners 

can not levy n. i, 4460 

race, no discrimination in. . . 4466 
report of auditor concerning, 4478 

contents 4479 

when made 4479 

report of transfers for ^ 468 

school commissioners gives 

receipt for 4526c 

school lands sold subject to, 

4364, 6519 
special for buildings and fur- 
niture 4467 

constitutionality of . . .n. i, 4467 
county commissioners no 

control over n. 3, 4467 

to pay debts, 4471, and n. i, 4471 
for general purposes in city 

or town 4490 

who levys , n. 2, 4467 

transferred person taxed, 

4468 ; n. 3, 7, 9, 4474; n. 5, 4488 
treasurer of county collects, 

when 4468, 4526c 

treasurer, quietus to 4526^/ 

trustee, local levy by 44^9 

tuition 4465, 4469 

how applied 4470 

uniform, must be. .4466; n. 4, 4467 
Teacher, authority over pupils, 

n. 3. 4504 
authority out of school, .n. 4, 4504 

bible, reading „ . n. 2, 4493 

care of school property, n. 17, 4444 

compensation n. i, 4444 

when forfeited 4501 

contract, blanks in n. 3, 4501 

contents n. 17, 4444 

how made n. 6, 4444 

lack of funds n. 3, 4501 

license necessary ....n. i, 4501 

verbal n.3, 4501 

when made .n. 7, 4444 

written n. 3, 4501 

corporal punishment, inflict- 
ing n. 9, 4501 

dismissal 4501, and n. 5, 4501 

illegal, result n. 10, 4501 

employment, 

4501; 4444; n. 3, 4499 



961 



Schools {confd) SEC. 

Avho makes, 

n. 19, 4437; n. 7, 4501; 4444 

license expiring 4426 

examined, how 4425; 4502 

faikire of authorities to fur- 
nish school n. 2, 4449 

holidays gets n. 6, 4501 

institute, must attend 4520 

pay for n. 2, 4520 

insulting 4507 

liability of trustee to, 

n. I, 2, 10, 4501 
license, must have, 

4501, and n. 1,4501 ; 4460 

minor may be n. 2, 3, 4501 

moral character of 44^5 

names not reported, when. . 4428 
old board employing, 

n. 8, 10, 4501 ; n. 2. 4445 

patrons selecting n. 2, 4444 

pay, funds giving out. . . .n. 3, 4501 

forfeiting 450i 

of graded schools. . . .n. 15, 4444 

private examination of 4427 

protest of patrons n. 4, 4501 

qualifications of 4501 

religious belief n. 2, 4493 

remedy, to recover pay, n. 2, 4486 
report, must make, 

4449, and n. 4, 4449 

contents 4449 

penalty 4449 

private teacher n, 1,2, 4509 

when makes n. i, 4449 

resignation of n. 8, 4444 

state certificate to 4422 

term of employment n.8, 4501 

trustee can not employ him- 
self '. . n. 5, 4444 

not personally liable . .n.3, 4486 
want of funds to pay, no 

defense n. 2, 4486 

who may employ n.8, 4501 

witholding wages n.3, 4449 

Terms, length of school ...... 4495 

uniform, must be, 

4494, and n. i, 4494 

Text-books, change of 443^ 

See Books. 

Timber, sale of lands with 4346 

cutting 4346 

Time, how reckoned 4495 

month 4495 

term 4445 

week 4495 

year 4495 

Title, how taken to school prop- 
erty 4508 

joint school 45^3 

state does not warrant, on 

sale of n.3, 47S3 

to school money n. 2, 4440 

61 



Schools {conVd) sec. 

when vests in state without 

deed 4396 

Towns, corporation for school 

are 44385 and n. 2, 4438 

bonds for buildings, may sell, 448S 
county superintendent con- 
trols n. 3, 4429 

dog fund, division of, with, 

n. 3, 4487*^ 
See Taxation, 
joint graded schools, in .... 4446 
pupils outside may attend . . 4490 

school corporation, is 4438 

superintendent in 4445 

suits 4438, n. 15, 4439 

trustees fined, when 445^ 

election of 4439 

unincorporated, bequest to 

aid 4514 

bonds for 4514 

petition for ........ 4514 to 4516 

unincorporated, sale of bonds, 4516 
Townships, boundaries of .... 4331 

contracts of 4437 

corporation for school pur- 
poses n.. 2, 4437, n. 9, 4438 

county line, dividing 4332 

division of funds, with town, 

n. 10, 4441 

judicial notice, of n. 10, 4437' 

name of 4437 \ ii« 20, 21, 4437 

power of n. 16, 4437 

presumption raised by use of 

name n. 6, 4437 

process, how served upon, 

n. 22, 4437 

suits 4437; 4438 

Trafiiic in questions forbidden . . 4421a 
Transfers, adjoining, when must 

be made n. 2, 4473; n. 2, 4474 

appeal from 4537 ; n. i, 4473 

auditor's duty n. 5, 4473 

better accommodation, n. 3, 4473 
constitutionality of law, n. 4, 4474 
county superintendent, duty 

concerning n. 5, 4473 

enumeration of, 

n. 6, 4472; 4472; 4473 
from one county to another, 4474 

-notice of n. 5, 4473 

payment for transfer 4474 

record of n. 6, 4473 

renewals n. 10, 4473 

re-transfer n. 4, 4473 

i-ight of n. I, 4473 

taxing transferred persons, 

n. 7,4473; n. 3^4474; 4490, 

and n. i, 4490 
tenant's property can not be 

taxed ". n. 9. 4473 

wife's property can not be 

taxed " n. 9. 4473 



962 



Schools {confd) SEC. 

when made n. i, 4473 

who may be 4473 

Treasurer (city), bond in large 

city 4460 

election and bond 4439 

Treasurer (county) collects 

school-tax 4468 

pays tax to city treasurer 4461 

report, makes, of funds of. . . 4398 

resale of land 4347 

sale of land, attends 4345 

school moneys, receives, n. 2, 4388 
Treasurer of state, pays funds 

to county 44S4 

Treasurer (town), election and 

bond 4439 

Truancy, expulsion for n. 2, 4505 

Tuition, advancement by trustee, 

re-imbursing n. 12, 4501 

annual levy of 44^5 

anticipating 444^; n- i, 4470 

application of n. 2, 4442 

apportionment by auditor of 

state 4484(7 

according to enumeration, 4432 
by county superintendent, 4434 
auditor of state draws war- 
rant for 4484(7 

books, used to pay for 44^4^7 

defined 4325 

diminished for failure to re- 

POi-t 4431 

division of, when made, 

n. II, 4438 ; n. 2, 4508 
expenditure of, within year, 

4442, 4499 
expense of collecting can not 

be deducted from 4325 

fees can not be taken from. . 4325 
formation of town, division of, 

n.2, 4508 
levy of, who makes . .n. i, 2, 4469 
license money forms a part of, 4325 

local tax for 4469 

how levied . 447o 

payment of, by non-resident, 

n. 4, 4490 
private school, can not be 

used for n, 4, 4509 

rents deducted from 4328 

report of transfers for 4473 

town incorporated within 

township n. 5, 4486 

See Tax. 

Uniformity of school terms 4494 

Unsafe investments n. i, 4400 

Use of school-house for private 

purposes 4509; 4510 

Vacancy in office of county 

superintendent 4424 

city or town trustee . . .4439; 4459 
township trustee. ...... .n. 5, 4440 



Schools (r(;;//V/) sec. 

Vaccination, duty concerning, 

n.4, 4429; cl. 35, n.2, 3106 

power to compel n. 5, 4429 

Visits, county superintendent 

makes 4429 

director makes 45^5 

state superintendent makes . 4411 
Voters defined, 

n.4, 4501; n. 2,4509; 4499 

lessees n. i, 4339; n. i, 4339 

meetings of 4499 

petition for removal of school - 

house 4499 

petition to sell house 4499 

repairs directs 4499; 450^ 

who are n . i , 4498 

Warrant on treasurer to bor- 
rower 4383 

to counties by state auditor. . 4484 
Warranty of title by state, .n. 3, 4383 
Waste, injunction to prevent on 

school lands n. 2. 4346 

liability for in case of forfeit- 

l^re 4349 

suit for 4350 

Week, school, what is 4495 

Wife, signature to mortgage 

necessary n. 3, 4385 

Witnesses, use of on appeal, n. i, 4537 
Women eligible to school of- 
fices 4540 

bond of binding 4541 

constitutionality of act, n. i, 2,4540 
Worship, reading bible. . . .n. 3, 4493 
Year, school, when begins .... 4499 

Scientific institution 

Exempt from taxation. . . .cl,''5, 6276 

Scuttles 

Fire regulations concerning . . 3199 

Sea walls 

City may compel building of, 

cl. 34, 3106 

Seal 

City has 3068 

clerk may use . . . .3068 ; n. 4, 3062 
mandamus to obtain posses- 
sion of n. 2, 3102 

mayor keeps 3062 

when uses n. i, 4, 3062 

replevin for n. 2, 3106 

use of n.2, 3102 

State has 227 

Town has cl. i, 3333 

Sealer of weights and 
measures 

Council elects 309S 

Seamen 

Exempt from highway work, 

n. I, 3156.7 
Right to vote , 8. 



9^3 



Second-hand clothing sec. 

Sale of regulated . . .cl. 24, n. i, 3106 

Secretary of state 

Attests governor's signature . . 22S 
Member of board of state tax 
commissioners 640irt 

Seminary fund 

Schools get 183 

Services 

No man's particular services 

shall be demanded 66 

Sewer (generally) 

Collateral attack upon proceed- 
ings can not be made, 

cl.43, n. 14, 3106 
Compensation not necessary, 

n. 12, 66 
Construction optional, 

cl. 43, n. 17, 3106 
under general power, 

n, 13, 3106; cl. 40, 43,3106; 

3074; 3151 
Costs, how assessed under act of 

1889 3292c 

Damages cl. 43, n. 12, 3106 

Eminent domain, power of used 

to obtain cl. 43, n. 5, 3106 

Extension beyond city limits, 

cl. 43, n. 2,3106 
Nuisance, when is, cl. 43, n. 17, 3106 
Optional with city to build, 

cl.43, n. 11,3106 
Outlet, n. 10,3106; cl.43, n.8, 18,3106 

Plan changed cl. 43, n. 6, 3106 

defective cl. 43, n. 17, 3106 

Power to construct a continu- 
ing one cl. 43, n. i, 3106 

Private drains cl. 43, n. i, 3106 

Public, what is cl.43, n. 20, 3106 

Sewerage accumulated near 

house n. 33, 3161 

Skill in constructing n. 5, 3106 

Surface water, sewers for, 

cl.43, n. 13,3106; n. 2,3151 
Tapping cl. 43, n. 9, 3106 

Sewer (city) 

Appeal from proceedings, 

cl.43, n. 3, 3106 
Apportionment of cost, 

cl. 43, n. 19, 15, 3106 

Bid for cl. 43, 3106 

Clerk's certificate cl. 43, 3106 

Construction, 

cl. 40, 3106; cl. 43, 3106; 

3074; 3151 
Contract to build. . . , cl.43, n, 4, 3106 

Contractor's bond cl. 43, 3106 

Cost, how paid cl. 43, 3106; 3151 

District in large city 3061 

Journal entry, concerning, cl. 43, 3106 



19, 
cl.43, 
cl.43, 



Sewer (city) {confd) 

Lessee assessed for cost, 

cl. 43, n 
Notice to lot-owner 

Ordinance for 

not necessary cl. 43, n. 2, 

publication cl. 43, n. 16, 

Outlet, cl.43, n.8, 18, 3106; n. 10, 
Power of city to build, 

cl. 43, n. 2, 
Precept to collept assessment, 

cl.43, n. 3, 

Regulating cl. 40, 3106; 

Repairing cl. 43, n. 7, 17, 

Street commissioner superin- 
tends construction of .... 
Wharf may be assessed for, 

cl. 43, n. 19, 



SEC. 

3106 

3106 
3106 
3106 
3106 
3106 

3106 

3106 

3I5I 
3106 

3074 
3106 



Sewer (city and town) 

Maybe constructed under act of 

1889 3292<7 

costs 3292c 



Sewer (town) 

Appointment of appraisers .... 

majority may act 

report 

Apportionment of cost 

Assessment, form 

treasurer's notice of 

Collateral attack can not be 
made upon proceedings, 

n. 2, 

Complaint 

Construction, 

3390; 3393; 3396; cl. 9, 

act liberally construed 

Contract for 

Cost apportioned 

collection 

how collected 

penalty for non-payment . . . 

town may pay part 

Engineer for 

Fees of officers 

Lien, assessment is 

Order to appraisers 

Outlet ..n. 10, 3106; cl, 43, n.8, 
Penalty for failure to pay costs. 

Power over sewers 339- ; 

Proceedings to establish 

Protection 

Schedule 

Superintendent 

Tapping 

Terms of letting contract 

Sewerage 

Accumulation near residence, 

n. 3, 
Nuisance n. 3, 



3393 
3395 
3393 
3393 
3397 
3398 



3396 
3400 

3333 
3406 

3404 
3397 
339S 
3400 
3399 
3403 
3402 

3401 
3393 
3394 
3106 

3399 
3406 

3393 
3405 
3396 
3402 
3405 
3404 



3161 
3 161 



964 



Shade-trees (city and 

town) SEC. 

City may regulate . . .cl. 15, 46, 3106 
Cutt/ng an offense, 

3229Z;; 3229a; cl, 46, n. I, 3106 

indictment for 3229Z' 

Mutilating n. 3, 3155 

Ordinance concerning 3-29 

Planting 3229 

Protecting 3229 

Removing cl. 46, n. 2, 3106 

Shade-trees (town) 

Enclosing street for . . . , 3334 

Protection of 3229 

Town may plant and regulate, 

cl- 14. 3333> 3229 

Shooting gallery 

City's liability for . . .cl. 3, n. i, 3106 

Shows 

License for cl. 15, 3106 

Sidewalks 

Construction in city, . . .3161 to 3165 

Control in city 3161 

Highways are n. 5, 3161 

Holes in not obstructions, cl. 5, 3106 
Ice and snow upon, 

n- 3' 3155; cl. 18, n. 9, 3106 
Improvement in city . . . .3161, '^2()2a 

Incumbering cl. iS, 3106 

Obstrviction of in city. . . .cl. 18, 3106 

Repairing .' 3106 

Shade-trees on border 3229 

Slippery, abutting owner not 
liable for ice upon, 

n. 40, 3161; n. 3. 3155 
Snow, abutting owner clearing 

off n. 3, 3155; n. 40, 3161 

See Negligence; Obstructions; 
Street Improvement. 

Sidewalks in town 

Action to enforce lien for con- 
struction 3360 

Contract for improvement. . . . 3359 

Cost 3360 

Driving upon unlawful '5361 

^^62 



fine 



Improvement, 3357; cl.9,3333: 3392^ 

under general law 

n. 19, 35, 3162, 3292^ 

Levy of taxes for 3363 

Lien for improvement 3360 

Marshal constructs, when 3359 

Obstructing cl. 11,6, 3333 

Ordinances for 3358 

Petition for 3363 

Power over 3328 

Riding upon prohibited, .cl. 11, 3333 
Shade-trees upon , 3229 

See Negligence; Obstructions; 
Street Improvement. 



Sinking fund sec. 

Aid bonds for railroad 3152 

City or town of 16,000 voters 

may provide 3231 

City having $30,000 of dehts 

may provide 3126 

General tax in city for 3158 

Lew for 3158 

Tax". 3126, 3152, 3158, 3251 

Tem.porarv investment of funds, 

3158^ 

Sinking fund commis- 
sioners 

Commissioners elected, 3126^, 3126^? 

bond 3126^' 

term 3i26(^ 

Coupons receivable for taxes, 3231(7 

Deposit of funds .3i26r 

Funds, how used 3126^? 

Interest on deposit 3126c 

Misapplication of funds 3126/" 

Pay of commissioners 3123/" 

Removal 3126^ 

Report of 31 26^ 

^publication 3i26r/ 

Treasurer's report 3126c 

duty 3126c 

Vacancy in office 3126/' 

Skids 

Obstructing street . .cl. 18, n. 6, 3106 

Slaughter-houses 

City may locate cl. 11, 3106 

Towm may locate cl. 8, 3333 

Slips 

Use of, city may regulate 3142 

Slops 

Removal 3226 ; cl. iS, n. 3, 3106 

Smoke 

Damages, may increase . . . .n, 23, 66 

Snow 

Falling from roof, . .cl. 18, n. 9, 3106 
Removal from sidewalk, 

n.40, 3161; n. 3, 3155 

Soap factory 

Regulation of cl. 4, 3106 

Soldier 

Voting 85 

Working highway n. i. 3155 

Squares 

Dedicating cl. 45, n. 4, 3106 

Incumbering .cl. 18, 3106 

Petition to sell cl. 47, 3106 

Sale cl, 47, 3106 

See Public Squares. 

Stal rv^^ay 

City not liable to person fall- 
ing down n. 38, 3161 

Obstructing street . .cl. 18, n. 6, 3106 



965 



state SEC. 

Can not assume debt of city. . . 198 

Property, may seize 66 

State-house square 



Statute of limitations 

Condemnation proceedings, 

when a bar n. 19, 60 

Pleading before mayor. . . .n, 5, 3066 

Stay 

Judgment of conviction may be, 3067 

Steam-whistie 

Preventing use of. . . .cl. 7, n. i, 3106 

Stock 

City may tax. . .3156, and n. 10, 3156 
Subscribed for by city or town, 

n. I, 198 

Stones 

Incumbering street, cl. 18, n. 2, 3106 

Stove-pipes 

Town may regulate cl. 3, 3333 

Stranger 

Bound by city or town ordi- 
nances n. 15, 3066 

Straw 

Storage may be regulated, 

n. I, 3199; n. I, 3155 

Streams 

City may straighten 3166; 3103 

Channel changed, damages 

must be assessed n. 2, 3170 

Controlled by city 3103 

by town 3338 

Throwing on land n. 7, 3106 

Town may control 3338 

Vacated in city 3184 

Street commissioner 

Bond of 3043 

Debt, can not contract 3074 

Duties 3074 

Election 3^43 '1 3098 

in large cities 3054 

in towns cl. lo, 3333 

Marshal performs duties of, 

w^hen 3043 

Notice to of defect in street, 

n. 2, 3074 

Number in town cl. 10, 3333 

Oath and bond 3095 

Powers of, road supervisor has, 3161 
Prisoners, ^vorks on street .... 3067 

Purchases tools 3074 

Re-appointment n. 8, 3043 

Removal n. 6, '8, 3043; n. i, 3074 

Repairs, makes 3162 

Report o 3074 

on drainage in city cl. 2, 3106 

Supervisor acts as . , .^ n. 2, 309S 



Street commissioner 

[confd) SEC. 

Term., n, 8, 3043 

in large city 3054 

Torts, city liable for n. 2, 3074 

Vacation of street 3184 

Streets 

Abandonment. n. 15, 3161 

Abutting ovv^ner's rights in,n.6, 3161 
Adverse possession, 

cl. iS, n. 8, 3106; n. 15, 3161 
Care and supervision, 

cl. 18, n. 8, 3106 
Civil engineer, duty toward 

opening 3073 

Cleaning cl. 10, 3106 

Cul-de-sac is part of n. 11, 66 

Electric light poles in 3229c 

Eminent domain to acquire, 

n. I, II, 66 
Estimate of cost, when com- 
pelled by mandate n. 8, 3073 

Exemption from improvements, 

cl.49, 3106 

Fee, pay for n. 11, 66 

Gas-pipes laid in, 

cl. 28, n. 6, 7, 8, 3106 ; 3110^? 
Grade, change of, effect on 

water-pipes . . . .cl. 26, n. 7, 3106 

maybe n. i, 2, 3, 3073 

Highways are n. 5, 3161 

county highway becomes, 

cl. 18, n. 8, 3106 

Huckster stands in n. 9, 3161 

Incumbering cl. 18, 3106 

Lighting in city cl. 28, 3106 

in town 3336 

Market-house in, 

n. 14, 66; cl. 33, n. i, 3106 
Narrowing, damages must be 

assessed for n. 39, 316X 

Negligence, see Negligence. 
Obstructions to, what is, 

cl. 18, n. 9, 3106 

removal of 3191 

by town 3367 

Overhanging objects . . . .n. 10, 3161 

Park in way of cl. 45, n. 4, 3106 

Plan of improvement, change 

in n.7, 3073 

Power of city over, strictly 

construed n. 4, 3161 

Prisoners working upon . .n. 2, 3067 

in town 3347 

Private use of n, 9, 3 161 

Private corporation, taking 

land from for "-13' 31^-^1 

Purpose n. 11, 66 

Railroad in, 

cl. iS, n, 9, 3106; n. 7, 3161 

street railway in 4^54 

Repairing n. iS, 3161 

Road tax . ;i6i 



966 



Streets [confd) sec. 

Shade-trees in .cl. 46, n. 2, 3106 

in town 3334 

Supervisors of, city fnay elect, 3098 
Title, must be obtained before 

improvement n. 10, 3161 

Traction engine, using street, .3224^^ 
Use of, what legitim.ate, 

n. 12 to 18, 66 

for ferry 3103 

Water-pipes laid in 

cl. 28, n. 6, 7, 8, 3106, 3iio«^ 

Working in city 3161 ; 3156^ 

in town 3367 and n. 6, 3367 

Vacation, laws concerning 

must be general 118 

Street improvement (city) 

Acceptance of work, evidence 

and effect n. 16, 3164 

Advertisement for bids .,n. 13, 3162 

form . . , 3162 

must be in English n. 29, 3162 

Affidavit for precept 3165 

defective, and effect n. 17, 3165 

Appeal bond 3165 

costs upon n. 33, 3165 

effect on reversal n, 27, 3165 

practice upon, 

n. 23, 24, 25, 30, 31, 3165 

transcript 3165 

Avhen to take n. 34, 3165 

Assessment 3162 

affidavit of, sufficiency . .n. 5, 3165 

complaint to collect 3165a 

constitutionality of law au- 
thorizing, .n. I, 3165 ; n. 6, 3164 
contractor must satisfy record, 

3229/ 

correcting n. 3, 3164 

defenses to n. 22, 3164 

description of property, n. 10, 3164 
each lot must be separately 

assessed n. 8, 3164 

final, what is n. 5, 3164 

invalid in part, effect. ..n.23, 3164 
as to other property, .n. 9, 3164 

joint owners n.8, 3164 

-lien, when attaches. . . .n. 11, 3164 

mandate to compel n.7, 3164 

necessary to issue a precept, 

n. 19, 3164 

new, may be n. 19, 3164 

new, second affidavit required, 

n. 5, 3165 
precept can not be issued 

without n. 19, 3164 

without is void n. 7, 3165 

personal liability upon. .n. 3, 3165 
presumption concerning. n. 5, 3164 

repeal of statute n. 2, 3165 

right to collect can not be de- 
stroyed n. 4, 3165 



Street improvement (city) 

[confd) SEC, 

sufficiency n. 27, 3162 

unplatted lands", how collected, 

n. I, 5' 3165^ 

Bid, acceptance 3162 

agreement not to compete, 

void n. 34, 3162 

bidder can not claim damages, 

n. 33, 3162 

bond accompanying n. 30, 3162 

lowest, not accepting. . .n. 31, 3162 

modifying n, 33, 3162 

rejecting n,2i, 3162 

releasing bidder n, 31, 3162 

Cemetery can not be assessed 

■with cost of n. 17, 3162 

Certificate of sale 3165 

assignment of 3165 

Church can be assessed . .n. 17, 3162 
Civil engineer has charge of . . 3073 
Collateral attack upon proceed- 
ings can not be made, 

n. 20, 3162; n. 37, 3165 
Complaint to collect assess- 
ment 3165a 

Consequential damages. . .n. 7, 3162 
Constitutionality of statute, 

n. I, 3161; n. 6, 3162; 

n. 2,3163; n. 3, 3165a 
Construction of statute. . .n, 4, 3165a 
Contract for improvement .... 3163 

assignment n,24, 3162 

bond taken \vith. ,n. 35, 3165; 3162 
city not liable upon. . .n. 3, 4, 3162 
city orders, paid in ... .n. 21, 3162 
irregularities, city not liable 

for n, 28, 3165 

form 3162 

officer interested in 3163 

sufficienc}'- of n. 21, 3162 

writing, must be in n, 2, 3162 

Costs, apportionment of 3163 

lien 3164 

paid by city jn advance, n, 38, 3165 
Court-house can not be assessed, 

n. 17, 3164; n. 17, 3162 

Coverture no defense n. 14, 3164 

Crossings paid for by city, n. 15, 3162 

Deed 3165 

recitals in, effect n. 16, 3165 

Defenses n. 25, 3165 

Description of lots n. 27, 3162 

Dirt, ownership of. . . .n. 22, 35, 3162 

Estimate of cost, form 3073a 

assignment n. 18, 3164 

authorized former improve- 
ments 3163 

clerk's copy of 3164 

collection 3165 

how^ made 3163 

incorrectness must be shown 
by answer .n. 31, 3165 



96; 



Street improvement (city) 

{cont'd) SEC. 

partial 3164; n.6, 3165 

resolution allowing 3164 

Estoppel of land-owner, 

n.8, 3165; n.13, 21, 3164 
Femes covert^ may redeem. ... 3165 

Grade changed n. 2, 3162; 3073 

damages must be assessed, 

n. I, 3170 

Idiots may redeem 3165 

Infants may redeem 3165 

Tnjunction against 3165 

Insane persons may redeem. . . 3165 
Irregularities not sufficient to 

defeat n. 18, 25, 3165 

when fatal n. 20, 3164 

Jail-yard can not be assessed, 

n. 17, 3164 
Joint contractor, affidavit for 

precept n. 12, 3165 

Judicial notice of city's powers 

to improve street n. 6, 3162 

Length of improvement, .n. 3, 3162 

Liability of city 3163 

Lien .'..._ 3162; 3164 

priority over judgment or 

mortgage n.39, 3165 

repairs 3-64 

what property subject to, 

n. 40, 3165 

w^hen attaches n. 11, 3164 

Lighting, cost of cl. 18, 3106 

Literal compliance with statute 

not necessary n. 9, 3165 

Mandate lies to compel assess- 
ment n. 10, 3165 

Notice to owner essential, n. 6, 3162 
Nul tiel record not a good plea 

in defense n, 29, 3165 

Optional with city to order, 

n. 10, 3162 
Patented process may be used, 

n. 12, 32, 3162 
Payments made in advance by 

owner n,4, 3164 

how enforced 3165 

made in advance by city, n. 38, 3165 
voluntary, can not be re- 
covered back n. 15, 3164 

Petition for improvement 3162 

may be made without 3164 

agreement to sign void. .n. i, 3162 

changing n. 28, 3162 

form 3162 

for passage of ordinance .... 3162 

remonstrance 3162 

repairs, not necessary, for. . . 3164 
sufficiency, council holding, 

effect n. 2, 3164 

insufficient, work void, n. S, 3162 
two-thirds vote when petition 
is sufficient , n. 2, 3164 



Street improvement (city) 

[conVd) SEC. 

when not necessary 3164 

who may sign n. 28, 3162 

withdrawing names from, 

n. 28, 3162 
Plans for as evidence . . . .n. 11, 3165 

use of n. 9, 3162 

Precept, affidavit for, form 3165 

appeal from n.22, 3165 

estimate necessary, 

n. 19,"' 3164; n. 7, 3165 

deed upon 3165 

description of property in, 

n. 20,3165 
exemption from sale on, cl. 49, 3106 
issuance compelled by man- 
date n. 10, 3165 

new precept may be issued, 

when n. 19, 3164 

notice of issuance 3165 

order for n. 17, 3165 

sale under 3165 

sale, certificate of 3165 

signed by mayor n. 21, 3165 

void, may be enjoined, .n. 22, 3165 
Presum.ptions, concerning, n. 37, 3165 
Property liable for cost of, 

3163, 3i65« 
Public square, assessment, n. 17,3164 
Quieting title, questions triable, 

n. 36, 3165 
Quorum of council must be 

shown on appeal . . . .n. 14, 3162 
Railroad can not be assessed, 

n. 16, 3162 
street railway can not be as- 
sessed n. 16, 3162 

Re-improvement n. 11, 3162 

Remonstrance, Form 3163 

Repairing n. 6, 35, 3162 

Resolution for 3162 

signing by maj'or, not neces- 
sary n. 5, 3162 

sufficiency n. 9, 3162 

Road-tax for repairs 3161 

Sale, notice for n. 13, 3165 

refunding money paid, 

n.14, 15, 3165 
two or more lots at one time, 

void n. 19, 3165 

Sidewalks, repairing, 

3162 and n. 35, 3162 
general laws applicable to, 

n. 19, 3162 
State's property liable for cost, 3162 
Statute strictly construed, 

n. 6, 20, 3162 
Sunday notice for bids . . .n. 13, 3162 
Taxing power, power to assess 

different from n. 25, 3162 

Title to land sold n. 14, 3165 

Transcript "--3; -4- 3165 



968 



Street improvement (city) 

{^coiiVd) SEC. 
Two-thirds vote, v.hen neces- 
sary n. 8, 3162 

Unplatted lands, how assessed, 

n. 6, 3165^ 
complaint to collect assess- 
ment on 3165a 

what is n. 7, 3165a 

Street improvement (city 
and town, Act of 1889) 

Acceptance of land-owner's 

agreement 3292^ 

Action to recover cost of 3292a 

Agreement to pay assessments, 3292^ 

acceptance by city 3292^ 

effect " 3292^ 

Allowance to owner of land for 

improvement made 3292^^ 

Appeal from assessment 3292/ 

questions tried 3292/ 

trial 3292/ 

Assessment 3292^/ 3292c 

collection 3292^ 

form 3292/ 

how made 3292/ 

notice of 3292^ 

objection to 3292^ 

placed on tax duplicate 3292^ 

Attorney fees. . .3292a; 3292c/ 3292/ 

Bids 3292a 

advertisement for 3292a 

re-advertisement 3292^? 

rejection 32921^ 

reletting 3292(f 

Bonds, application of assess- 
ment to payment 3292c 

coupon 3292// 

form 3292// 

interest 3292// 

kind 3292// 

liens 3292/^ 

ordinance 3292^ 

fro rata payment 3292c 

when city performs work. , . .3292^^ 
when issued 3292^ 

Certificate of assessment issued, 

3292/; 3292^ 

action by several upon 32922' 

attorney fees recoverable up- 
on .3292/ 

form 3292/ 

interest 3292/ 

lien 3292/ 

fro rata payment 3292c 

Collection of assessment 3292^ 

how made 32927 

Constitutionality of statute, 

n. I, 3292^ 

Construction, city may per- 
form 3292^ 

Contract to perform work 32921^ 



Street improvement (city 
and town. Act of 1889) 

{confd) SEC, 

bond for performance 3292;^ 

officer interested in Z^9-d 

Costs, allowance to lot-owner, 3292^/ 

debt, is not city's n. 2, 3292^ 

how collected 3292c 

paid out of general fund 3292^ 

sewer 3292c 

unplatted land, how assessed, 3292c 
Credit given for payments 

made 3292^ 

Crossings, city pays for' 

3292c; n. 2, 3292^ 
Debt, is not debt of citj^. .n. 2, 3292^^ 

Declaratory resolution 3292^ 

Estimates 3292c 

final 3292/" 

form 3292/" 

how made ?,'^9^f 

liens 3292c 

partial, Avhen made 3292c 

prepayment, credit 3292c 

reference to committee 3292^ 

report of committee 3^9^^" 

resolution allowing , 3292^ 

rule for making 3292c 

Fees of treasurer on sale 3292/ 

Foreclosure of lien . . . .3292a; 3292c 
Injunction, when allowed, 

32927'; 3292/^ 

Installments! . . .32920- 

Interest is a lien 3292^0^ 

assessments bear 3292^ 

Large cities not governed by 

this act 3292;^ 

Liens 3292^ 

attorney fee is 3292c 

contractor has 3292c 

costs are 3292a 

discharge of 3292^^ 

estimate is 3292c 

extent of 3292^ 

foreclosure of 3292c; 3292/ 

mistake does not vitiate 3292c 

superiority 3292c; 3292c 

when attaches n. i, 3292c 

Mistake does not vitiate 3292c 

Necessity for a question for 

city n. 3, 3292a 

Notice essential n.4, 3292^ 

filing assessment 3292^ 

report 3292^ 

how long must be published, 

^- 5) 3292* 

reference to committee 3292^ 

Avhat is sufficient n. i, 3292^ 

Officer interested in contract, 

effect 3292^/ 

Ordinance for alley 3292*5 

asphalt 32923 

effect n, 3, 3292* 



969 



street improvement (city 
and town, Act of 1889) 

[confd) SEC. 

gutter 3292(5' 

notice of passage 32921^ 

sidewalk and street 32921^ 

street 3292*^ 

Petition 3292(7 

when not necessary, .3292^; 3292^ 

Precept, when issued 3292/ 

notice of 3292/' 

Recision of order for improve- 
ment n. 3, 3292^ 

Redemption from sale 3292*7 

Re-imbursement of citj 3292^ 

Remonstrance 3292^ 

against assessment 3292^ 

Repairs 3292^; 3292a 

estimate of 3292^ 

Report of committee on assess- 
ment 3292^ 

Sale of lot 3292*7; 3292c 

certificate of as evidence, 

3292/; 3292/ 

costs occasioned 3292c 

how made 3292/ 

notice of 3292/ 

precept 3292/ 

proceeds distributed 3292/ 

redemption from 3292/ 

State's property, how improved, 

3292(7 
Statute strictl}^ construed, n. 2, 3292*^ 
Street commissioner may make, 

3292^ 

Tax duplicate, form 3292/ 

Unplatted lands, how assessed, 3292c 
Waiver of errors n. 3, 3292^ 

Street improvement (town) 

Alleys, may improve cl. 9, 3333 

Bids, advertisements for 3359 

bond upon 3359 

sufficiency n. 5, 3364 

Board of commissioners order, 3380 
Complaint, necessary aver- 
ments n.4, 5, 3366 

demurrer, tested by n. i, 3366 

exhibits n. 3, 3366 

form 3366 

sidewalk 3360 

Contract, how let 3364 

officer can not take n. 5, 3366 

presumption as to parol, n.4, 3364 
Control of town exclusive, n.3, 3328 

Cost apportioned 33^5 

credit for improvement 33^3 

how collected 3366 

working out 3363 

Crossings cl. 9, 3333 

Estimate 3366 

Grade, what sufficient . . . .n. i, 3358 
ordinance for , , , , 3358 



Street improvement (town) 

(confd) SEC. 

Improvement in town cl.9, 3333 

Liens 3360 ; 3366 

Necessity for, question for 

town n. 2, 3357 

Ordinance for 3358 ; 3364 

for sidewalk 3358 

Petitions for.. 3363; n.3, 3364; 3368 

Power of board over n. 2, 3366 

Public square n- 7, 3364 

Repairing .3367 ; n. 5, 3357 

authority to make n. 2, 3363 

must make . .n.2, 3328 

Sidewalk n.4, 3357 ; 3360 

improvement cl. 9, 3333 

Tax to pay for 33^3 

Widening street, can not when 
ordering improvement, 

n. 8, 3364 



Street opening (city) 

Appeal allowed 

answer upon n. 2, 

bond 

costs 

demurrer n. 7, 

judgment upon 

notice of to city attorney . . . 

procedure 

title of case n. i , 

transcript 

trial I 

verdict n. 8, 

waiver n. 3, 

Appropriation must be for pub- 
lic use n. 7,8, 9, 

Assessment 3170 ; 

delivered to city treasurer . . 

when valid only in part, 

3168; 
Benefits 3177 ; 

collection 

collection delayed 

Civil engineer superintends 

opening . . , 

Claim for damages 

Clerk notifies commissioners of 
election 

files report and keeps 

of proceedings 

report, delivers to treasurer, 

3174; 

transcript makes 

Commissioners, appointment. . 

certificate of 

interested 3166; n. i, 2, 

meeting 

oath 

fro tc7)hfore 

Complaint on appeal 

Corporation, notice to 

Costs on appeal , , , 



3180 
3180 
3180 
3180 
3180 
3180 
3180 
3180 
3180 
3180 
3180 
3180 
3176 

3167 
3177 
3175 

3173 
3170 

3177 
3176 

3073 
3169 

3166 

3175 
316S 



3175 
3180 
3167 
3166 
3167 
3 1 68 



3 1 So 

3179 
31S0 



970 



Street opening (city) 

[confd) SEC. 

Damages, acceptance, effect 

upon land-owner n. 3, 3176 

grade changed, damages 

must assess n. i, 3170 

how assessed n. 3, 3170 

lessee n. 4, 3176 

measure .n. 4 to 11, 3170 

payment, 

n. I, 3176; n. I, 3181; 3182 

presumption as to n. i, 3181 

several persons claiming 3182 

tenant, when gets n. 7, 3170 

tender of n. i, 3176 

unknown land-owners, 3182; 3183 

waiver n. i, 3182 

when city liable for n. 3, 3174 

who entitled to n. 2 to 4, 3168 

Description of property, n. 3,4, 3168 
Dismissal of proceedings, .n. 8, 3180 
Estoppel to deny title acquired, 

n. 2, 3176 
Grade changed, damages must 

be assessed n. i, 3170 

Guardian, appointment 3173 

Heariftg by commissioners. .. . 3169 

Infant without guardian 31 73 

notice to guardian 3i73 

Insane person 3173 

Judgment, effect upon, 

n. 2, 3168; 3181 
Lessee entitled to damages, 

n.4, 3176 

Lien, effect upon n, 2, 3168 

assessment is 3^75 

Majority of commissioners 

may act 3169 

Marshal serves notices of .... 3168 

Mortgage, effect upon . . . .n. 2, 3168 

Notice to commissioners, 3168; 3167 

appearance a waiver . . . .n. i, 3168 

assessment 3i77 

clerk's to land-owner 3i73 

to corporations 3179 

to land-owner, 3168, and n. i, 3168 

to non-residents 3i77 

want of, effect 3168 

Oath of commissioners ..3166; 3169 
Parties to proceedings, n. 2,3,4, 3^68 
Payment of damages, 

3176; 3182; 3183 

Precept not required 3^77 

Proposition referred to com- 
mittee 3167 

Proof of notice 3168 

Protest of land-owner 3168 

Railroad may not take for, 

n. II, 3167 
entitled to damages. . . .n. 11, 3170 

Real estate benefited 3172 

Re-assessment 3^73 

notice to applicant 3173 



Street opening (city) 

{cont'd) SEC. 

Reference of petition to com- 

mittee 3 167 

Report of committee 3168 

acceptance 3i74 

contents 3171 ; 3172 

copy delivered to city treas- 
urer 3174; 3175 

damages, must be certain, 

n. I, 3171 

filed in recorder's office 3^75 

form 3171 

recommendations of council, 3174 

referred back, form 31 74 

clerk's notice concerning. 3174 

on expediency 3167 

showing land. to be taken . . . 3168 
when council must act upon, 

n. 2, 3174 
Resolution of appropriation .. 3174 

expediency 3167 

reference to committee ..... 3167 

sufficiency n. i, 14, 3174 

Slope for fill may be appro- 
priated .n. 7, 3167 

Subpoena for witnesses 3169 

clerk issues 3168 

marshal serves 3168 

Subsequent purchaser, rights. . 3175 
Substantial compliance with 

statute n. 3, 3161 

Tender of damages 3183 

Treasurer's record 31 77 

damages, pays 3182 

notice to city attorney 3182 

to non-residents 3183 

to unknown owners 3183 

reports collections .... .3177, 3178 

Transcript on appeal 3180 

Trial, practice n. 3 to 8, 3180 

Turnpike can not be appro- 
priated n. 5, 3168 

Unknown owner 3168, 3183 

Vote, what is necessary to 

make 3167 

Waiver of claim to damages, 

n. 3' 3176 
Widening street n. 5, 3167 

Street opening (town) 

Acceptance of report 3371? 3372 

when must be made n. 2, 3372 

Alley opened or vacated 3367 

Appeal 3372 

bond 3372 

effect 3372 

Appropriation for 337i 

Assessment list, collection .... 3371 
Clerk notifies commissioners, 3368 
Commissioners appointed .... 3368 

duty 3369 

notice to ' .....,,....., 3368 



97 



Street opening (town) 

{confd) _ SEC. 

oath 3368 

report 3369 

Complaint to collect benefits. . 3371 
Damages assessed 3369 

tender 337o 

Infants 3373 

Insane persons 3373 

Improvement of street a sepa- 
rate proceeding n. 8, 3364 

Lien of assessment 3371 

Notice to land-owner n. 3, 3368 

Petitions, forms 3368 

Power of town over streets, 

3367, and n. 3, 3367 

Procedure , 33^8 

Report of commissioners 3369 

acceptance 337o 

Tender of damages 337^ 

Transcript on appeal 337^ 

Trustees may open or vacate. . 3367 
Survej .' 3367 

Streets, vacation (city) 

Adjoining land-owner outside 
town limits can not object, 

n. I, 3187 
Agreem^ent to change lines of 

street 3190 

journal entry upon 3190 

Alley 3184 

Bond given on filing petition, 3184 

Change of street 3190 

Damages, increased pending 

proceedings 3^94 

assessed by commissioners . . 3185 
Easement extinguished, land 

reverts to owner n. i, 3184 

Expenses paid by petitioners. . 3184 

Grading and improving 3^94 

Improved by land-owner pend- 
ing proceedings 3^94 

Injunction to prevent, lies, 

n. 2, 3187 

Laws for must be general 118 

Map 3184, 3192 

New parties 3185 

Notice of proceedings . . . .3184, 3185 

Petition, form 3184 

changing street 3190 

notice of filing 3184 

referred to city commission- 
ers 3184 

Plat 3192, 3184 

Prior proceedings 3^93 

Procedure 3184 

Record of kept by clerk 3188 

Remonstrance n. 2, 3187 

Report of commissioners 3186 

action upon 3187 

referred back 3189 

Reversion of land n. i, 31S4 



Streets, vacation (city) 

{confd) SEC. 
Streets conforming to old 

streets 3^94 

Water-course 3184 

Streets, vacation (town) 

Acceptance 3382 

Adjoining land-owner outside 

town can not object. . .n. i, 31S7 

Alleys may cl. 9, 33.33 

Consent of owner necessary. . . 3382 

Forms for 3382 

Laws for must be general .... 118 

Notice 3379 

Order for 3380 

Petition for 3379 

Power to make cl. 9, 3333 

Proceedings 3380 

Remonstrance 3380 

Title on vacation 3381 

Towm may cl. 9, 3333 

Street railway company 

Agreement to use highway ... 4158 
Amendment or repeal of act 

authorizing 4153 

Annual meeting of stockhold- 
ers 4150, 4153 

Articles of association, where 

filed 4144 

Assessment of stockholders . . . 4159 

limit 4159 

Bonds, may issue 4148 

Borrowing money 4148 

Burden on easement, is not, 

n. I, 4153, 4158 

By-laws 4151 

Cable road n. i, 4147 

Consent of council 4^54 

of county commissioners. . . . 4155 
Construction of track and 

width , 4147 

Corporation, when becomes . . 4144 

Directors, election 4^49 

who may be 41 5 ^ 

Exclusive privilege n. 3, 4147 

Extension of franchise for- 
bidden 4161C? to 4161C,' 

applies only to Evansville, 

n. I, 41 61.'/ 
Extension beyond city limits. . 4155 

Fares 415: 

Formation ;i 43 

powers of and protection 1.157 

Gravel road, consent to use, 

4156, 415S 
Highway used for track, agree- 
ment 4^58 

Incorporation 4^43 

evidence of 41^4'^ 

when may be 4^43' 4^44 

Interest on bonds 4148 

Tslonopoly n. 3, 4147 



972 



Street railway company 

{confd) SEC. 

Name 4143 

Notice to stockholders 4159 

election 4150 

term 4149 

Officers 4149 

Ordinance 4^54 

Powers 4145 

borrowing money 4^4^ 

Preferred stock 4160 

Repeal of statute, may be 4153 

Route n..i, 4147 

Rules, may adopt 4151 

beyond city limits 4157 

Seal, may use 4^44 

Steam, use of n. i , 4147 

Stock, forfeiture 4^59 

preferred _ 4160 

rules and regulations con- 
cerning 4159 

shares 4143 

transfer 4152 

Stockholders, assessment 4159 

liability 4161 

meeting 4150 

Street, use of, 

414754154; n. 7,3161; n.13, 31C6 

Taxation 6357 

Terms prescribed by city 4147 

Track, construction of 4147 

use of by another company. . 4147 

Vested rights 4158 

Width 4147 

Street railways (electric) 

Contract of sale, recording 4158^ 

Electric road 41 58^ 

Electricity, when may use . . . .4158.7 

consent of council 4i58« 

Loan, may secure 41581^ 

Mortgage, may execute ..... .4158^ 

Sale, when m.ay be conditional, 4158^ 

recording 41581^ 

Title,when may be conditional, 4158c 

Subpoena 

City commissioners may issue, 3169 
Form before mayor 3066 

Subsequent purchaser 

How affected by opening street, 3175 

Suits by city 

Actions for, penalty 3066 

Averments to recover, penalty, 3064 
Corporate existence, need not 

aver 3064 

Denying publication of ordi- 
nance 3064 

affidavit of 3064 

Penalties for, how brought 3066 

Prosecutions against railroads, 3065 

Summons , 3065 

service of on railroads 3065 

See Pleading and Practice. 



Sunday sec. 

Liquor. license and effect upon, 

cl. 13, n. 2, 3106 

Mayor can not hold court upon, 3062 

Notices for street improve- 
ment n. 13, 3162 

Ordinance concerning observ- 
ance of n. 3, 3155 

Saloons locked on . .cl, 13, n. 8, 3106 

Supervisor of roads 

Acts under street commission- 
er n. 2, 3098 

Council elects 3098 

Surface water 

Accumulating on adjoining 
land, 

n. 32, 3161; cl. 43, n. 17, 3106 
City not liable for, 

n. 8, 3106; cl. 43, n. 17, 3106 

Floods and freshets n. 32, 3161 

Sewer, to remove. n. 2, 3151 

Throwing on land in a stream, 

n. 7,3106 

Surplus revenue fund 

Schools get 183 

Surrender of charter 

Proceedings for 3127 to 3130 

Survey 

Adoption of by city 3250 

Appeal from, 

3073. 3073^5 and n. 7, 3073a 

City may make 3249 

City civil engineer makes in 

city 3073 

Effect 3249, 3250 

evidence, 3249,3250, and notes, 3250 
prifna facie correct 3073^7 

Fees n. 4, 3073^ 

Incorporation of town 3293 

made public 3295 

Re-survey ordered by court, 

n. 3> 3073« 

Town may make 3252 

order for 3249 

adoption of survey 3249 

Swamp lands 

Proceeds of, schools get 183 

Swine 

Running at large. cl. 21, 3106 

Tables for games 

City may regulate use of, cl. 14, 3106 

Tallow chandleries 

City may regulate cl. 4, 3106 

Taverns 

City may regulate cl. 13, 3106 



973 



Taxation (city) sec. 

Administrator in cit}' may be 

assessed 3264 

Ad valorem^ limit of 3156 

Agricultural lands 3261 

Annexation of territory illegal, 

effect n. 8, 3196; n. 8, 3197 

Anticipating revenue from 3159 

Appraisement of county, city 

maj' adopt n. 4, 3157, 3160 

Assessments, clerk may correct, 3157 
Assessor's office abolished, 

3262; n. 1,3,3071 

duties 3071 

Banks and stock. .3156; 3254 to 3260 
indebtedness deducted from, 

n- 7, 3254 

Bitch 3156 

Bonds of United States n.9, 3156 

Board of equalization 3^57 

adoption of county appraise- 
ment 3160 

meetings.... ,. 3157 

membership 3157 

Iiotice of meeting 3157 

powers 3^57 

report 3157 

valuation, may equalize 3157 

Carriages 3156 

City assessor, see Assessor 

(City.) 
City clerk, see Clerk (City.) 
Citv treasurer, see Treasurer 
'(City.) 

Collection 3225^; 3085 

County treasurer collects .'. . . 3225a 

Correction of assessments 3157 

Coupons received in payment, 3231a 

Delinquent 3160, 3263 

publishing list n. i, 3091 

sale for n. i, 3088 

Disannexation of territory, ef- 
fect 3247 

I^ogs 3156 

Errors corrected by clerk 31 57 

by council 3^57 

Executor 3264 

Exemptions strictly construed, 

n. 7i 3156; cl. 49, n. 1,3106 

agricultural lands 3261 

executor 3264 

firemen 3202c 

pauper 3156 

Finding in cities 3126, 3122 

General powders, to make 3156 

General tax law, controls, 

n. 2, 3156 ; n. I, 3070 ; 3160, 3263 

Guardians 3264 

Illegal, may be injoined . . . n. 5, 3070 

Injoining n. 5, 3070 

Installments, when payable in, 

3160a, 3225a 
resolution for ,3160a 



Taxation (city) {cont'd) sec. 

Insurance companies 3156 

Interest, may levy to pay 3156 

Levy, power of city to make, 

n-6, 7, 3155 

limit n. 6, 3156 

ordinance 3^57 

when made . . .3157, and n. 7, 3157 

in large cities 3122 

Library 3805, 3815 

License taxes 3156 

Lien 3086 

personal tax is on real estate, 

n. I, 3086 
poll tax is on real estate, n. i, 3086 
superiority of city and county, 

n. 4, 3160 
Limit, exceeding and effect, 

3156; n. 8, 3157 

Machine shop, aid for n. 6, 3152 

Omnibus 3156 

Orders used to pay tax with, 

3080, 3082 

Parks, tax to purchase 3292^ 

tax to improve 3292^ 

Payment in installments, 

3160a, 3225a 

when must 3160 

Penalties 3088 

Platted territory n. 7, 3197 

Poll 3156 

lien on real estate n. i, 3086 

Railroad 3156, and n. 11, 13, 3156 

aid to 3152 

Rate of levy 3^57 

Refunding \ ; n. 5, 3157 

Revenue, anticipating 3^59 

Road 3161 (R. S. 1881, § 5067) 

Sale, certificate for land 3091 

deed for land n. 3, 3094 

fees. n. i, 3094 

how made n. i, 3088 

legalized n. 2, 3094 

registry of 3092 

title does not warrant . . . n. 2, 3088 

Sinking fund, tax for 3158 

State tax-law governs . . . .3160, 3263 

Stock n. 10, 3156 

companies 3156 

Treasurer's warranty 3091 

Uniform and equal n. 5, 3156 

Warrant 3070 

eftect n. 4, 3070 

power under n. 4, 3070 

Water-works 32S3 

Taxation (town) 

Administrator in town 3264 

Agricultural lands 3261 

Collection 3351, 3354, 3225a 

County treasurer may collect, 

3225^, 3353. 3354 
Decedent's estate 3264 



974 



Taxation (town) [cont'd) sec. 

Distress and sale for 3351 

Dog cl. 15,3333 

Duplicate of, to county audi- 
tor 3353 

Errors, clerk corrects 3^57 

Executor 3264 

Exemptions, statute necessary, 

n. 7, 3156 

Gas tax 3337 

General law governs 3263 

Guardians 3263, 3264 

Installments 3225a 

Interest on bonds 3345 

Levy, how made 3349 

each year 334^ 

limit." cl. 15,3333; 3345 

when n. 3, 3348 

for schools cl. 19, 3333 

Marshal collects 335i 

list to 3349 

Personal property, where taxed, 

n. 4, 5, 3348 

Poll 3345 

Railroad may tax 3156 

Recovery of money voluntarily 

paid n. 2, 3351 

Redemption of real estate 3352 

Road tax 3355^3356; n. 2, 3365 

Sale, personalty 3351 

private, can not make. . .n. i, 3351 

redemption from 335 1 

Schools cl. 19,3333 

Street improvement tax 3363 

Uniform and equal n. 5, 3156 

Warrant 3349, 3350 

Taxation (general law) 

Absence of property owner, 

penalty 6339; 6342 

Administrators, payment by . . . 6443 

re-imbursement of 6444 

sale of property 6445 

when must list 6282 

when not by cities and towns, 3264 
where taxed 6290 

Adverse possession, effect on 

tax sale, n. 5, 8, 6480 ; n. 12, 6495 

Affidavit of taxless person 6328 

Agent, failing to list n. i. 6297 

how lists 6297 

where taxed 6290 

Animals where assessed . ,cl. 2, 6290 

Annual review of delinquents . 6513 

Assessment. 

administrator 6282 

adults must list for 6290 

agents, of 6297; 6290 

attorney, of 6290 

banks, of. ..3254; 3257; 6294; 6344 

blanks for 6330 6377 

bridge companies, of 6296 

brokers, of , , 6294 



Taxation (general law) 

[confd) SEC. 

canal lands, of 6319 

capital-stock, when not liable, 6308 

chattels mortgaged, of 6309 

pledged, of , 6309 

consignee, of 6292 

co-partnership 6291^ 

corporate property, of 6291 

credits valued for 6332 

deductions from 6332 

decedents' estates, of 6290 

deeds held as security, of. . . . 6302 
devisees of imdivided lands . 6321 

doubts as to place of 6298 

eating-houses, of 6294 

engines, of 6315 

equal and uniform, must be, 193 

evasion provided against 6335 

evidence, refusing 6341 

executors, of 6282 

false return 6339 

ferries, of 6294 

fiduciaries, of 6328 

forms for 6336 

franchises, of 6303 

fraudulent return for 6339 

gas companies, of 6295 

government lands, of 6319 

gravel-roads, of 6296 

guardians, of 6290 

heirs of undivided lands .... 6321 

must list 6282 

hotels of 6294 

hydraulic companies, of ... . 6295 

idiots, of 6290 

Indian -treaty lands, of 6275 

infants, of 6290 

information, citizens must 

give 6341 

insane, of 6290 

insurance companies, of ... . 6294 
interest on exempt bonds, of, 6304 
interrogatories to tax-payer, 6331 

failure to answer 6341 

irregularities in, not vital. . . 6394 

lands, of 6271 ; 6377 to 6390 

description of. .6325 ; 6326; 6377 

forfeited to state, of 6274 

mortgaged, of 6310 

sold by state, of 6274 

townships, in several, of . . 6324 

undivided, of 6321 

leasehold estate, of 6318 

livery -stables, of 6294 

machinery, of 6315 

males (of), for poll 6270 

manufacturers, of 6313 

merchants, of 6312 

mining companies, of 6294 

non-residents, bank-stock of,. 6307 

nursery stocks, of 6301 

oath as to deductions , 6334 



975 



Taxation (general law) 

{confd) SEC. 

owner of property, of 6281 

partners, of 629i« 

personalty, of 631 1 

pawnbrokers, of 6316 

personalty, of 6271 ; 6290 

persons removing, of 6298 

plank-roads, of 6296 

polls, on 6269 

poor, affidavit of 6328 

proceeds of exempt lands. .. . 6300 

propert}^ in tra7isitu, of 6292 

railroads, of 6360 

receivers, of 6290 

remedy of absent person. . . . 6342 

sick person, of 6342 

residence, at 6290 

rolls of, replaced 1265 

saloons, of 6294 

saving-banks, of 6357 

schedules for 6330 

form of 6336 

who must give 6328 

school lands 6319 

legalizing of 6519 

sickness excuses for not list- 
ing 6339 

sinking-fund lands, of 6274 

state university lands, of, 6274; 6319 

stock-jobbers, of 6294 

stock of national banks 6306 

non-resident owners of . . . 6307 

street-railways of 6296 

survey of lands for 6325 

time of — April i, annually . . 6281 

township, must be in 6290 

transient persons, of 6314 

treasurer (by), when 6456 

trust-lands, of 6274 

trustees, of 6290 

turnpike roads, of 6296 

uniform and equal, must be . 193 
valuation by assessor . .6330; 6340 

penalty added, when 6340 

voluntary associations, of . . , 6357 
Wabash and Erie canal, of . . 6320 

water-craft, of 6293 

water-works companies, of. . 6295 
Assessor (county). 

assessment by, effect. ... 6396/;' 

bond 6396^ 

deputy and his pay 6396^ 

duties 6396^ 

to township assessor 6396^ 

election 6396^ 

member of board of review, 6397 

oath 6396^, 6374, 6389 

omitted property assesses, 6396<^ 

pay 6396<i; 

power 6-y)6b 

return of property, when 

makes 6396/^ 



Taxation (general law) 

{confci) SEC. 

term 6396^ 

vacancy 6396a 

.Assessor (township). 

affidavit to realty return, 

form of 6386 

assessment of lands 6391 

sexennial 6388 

of new improvements 6391 

banks, incorporated 6345 

unincorporated 6343 

blanks, county auditor fur- 
nishes 6377 

bond of 6374 

buildings on right of way. . . 6380 

entry of to appraise 6382 

bureau of statistics, reports 

to 5720 

corporations, domestic, state- 
ments 6357 

deputies,appointment of, 5568, 6375 

salary of 6376 

election of 4735, 6374 

errors in valuation, corrects, 

6388, 6390 
evasion of assessments, duty 

as to 6335 

exhibits, tax-payers make to, 6332 
improvements, new, assesses, 6391 

destroyed, duty as to 6391 

interrogatories to tax-payers, 6331 
irregularities of, do not viti- 
ate 6394 

list, refusal to make 6340 

manufacturers' statements,, . 6313 

meetings of assessors 6330a 

chairman of. 6330c 

quorum 6330^ 

secretary of 6330c 

valuations agree upon. . . .6330^ 

merchants' statements 6312 

mines, valuation of 6381 

oath of 6374 

failure to administer 6396 

personalty, to return of . . 63S9 

realty, to return of 6386 

office 6376a 

pay 6376a 

personalty, valuation cor- 
rects 6390 

notice to owner of 6393 

oath to return of 63S9 

omitted assessment of ... . 6393 

tabular list of 63S9 

plats, county auditor fur- 
nishes 6377 

quarries, valuation of 63S1 

railroad report to county au- 
ditor 636S 

personalty, assessed by 6365 

realty, except track, assess- 
ed by ,,,,,,,,,,... 6366 



976 



Taxation (general law) 

[C0?lt'd) SEC. 

realty, affidavit to return of, 6386 
list of, county auditor fur- 
nishes 6377 

penalty for not return- 
ing 6378 

tax-pavers furnished 

Avith 6378 

valuations affixing. 6384 

memorandum to owner . . . 6387 
omitted assessment of. . . . 6393 

notice to owner of 6393 

quantity, how determined, 6383 

return of . 63S5 

oath to 6386 

realty, railroad, assessed by, 6366 
sexennial assessment of . . 6388 

valuation of , 6379 

refusal to list 6340 

reports by — 

blind, as to 6337 

deaf and dumb, as to 6337 

idiots, as to 6337 

insane incurable, as to. . . . 6337 

statistical 5720, 6338 

returns hy — 

personalty 6389 

realty. . .\ 6385, 6386 

tax-payers' statements 6395 

valuation, when not made, 6378 

salary of 6376 

deputies 6376 

service of, limited 6376 

statements, corporations, do- 
mestic 6357 

delivery of to county audi- 
tor 6395 

false, punishment for .... 2156 

prosecutor notified .... 6339 

tabular, to county auditor, 6389 

tax-payers, from 6330 

statistical reports by, 

5720, 6337, 633S 

term of office 6374 

transients, duty as to 6314 

vacancies, county auditor 

fills 6374 

valuations, agreement con- 
cerning 6330^^ 

buildings on canal right of 

way 6380 

buildings on railroad right 

of way 6380 

improvements, new 6391 

mines, of 6381 

personalty, of. . .6365,6390, 6393 

quarries, of 6381 

realty, of. .6366, 6379, 6384, 6393 

refusal to list, upon 6340 

statements, upon 6330 

Association, building, of 6373 

voluntary, of 6357 



Taxation (general law) 

[C07lfd) SEC. 

when means person 6329 

Attorney-general sues countv 

treasurer 6506 

express companies, sues .... 6352 
sleeping-car companies sues, 6355 
telegraph companies, sues . . 6353 
telephone companies, sues . . 6354 
Auditor of state sues for discov- 

ei-J 6437 

book-keeping, prescribes sys- 
tem 6517 

books and papers, may ex- 
amine 6317 

copies of act, furnishes 6518 

corporation report makes, 

when 63^9 

equalization, certifies to coun- 
ty auditor 6412 

express companies report to, 6352 
forms and instructions by, 

6369- 6515 

information to 6317 

insurance company's license, 

revokes 6352 

payments, erroneous, certifi- 
ed to 65 1 1 

prosecuting attornev notifies, 

w^hen 6503 

railroads report to 6369 

penalty for failure 6370 

reports assessment of 6371 

valuations certified to, 

county auditor 6410 

sleeping-car companies re- 
port to 6355 

telegraph companies report 

to 6353 

telephone companies re- 
port to 6354 

Bank stock, assessment. . 6343, 6344 

in cities, of 3254, 3260, 6350 

county auditor's duty as to, 6346 
dividends retained by bank 

for tax 6349 

lien of taxes upon 6348 

manner of listing 6345 

national 6307 

payment of taxes 6348, 6349 

penalty for failure to pay, 6348 

rate of taxation 6306, 6344 

statement of bank 6343 

town may tax . .3254 to 3260; 6350 
validity of law as to, 

n. 1,6344; "• 2,6345 

valuation of stock 6345 

where taxed. . . .*. cl.3, 6290 

Banks (of), national 6306 

real estate of n. 2, 6343 

savings 6357 

statement of 6343 

town may tax 6350 



977 



Taxation (general law) 

[confd) SEC. 

Bankrupt sale does not avoid 

tax lien n. i, 6447 

Bill of discovery to collect cor- 
poration taxes 6437 

Blanks for. .6330 ; 6336; 6377 ; 64^oid 
furnished bv county auditor, 

6336; 6330 

prepared by auditor 6377 

by state tax commissioner, 6401^ 

Blind, enumerated 6337 

Boats, where listed 6293 ; 6272 

part-ov/nership of n. 4, 6290 

Bonds of United States 6331 

Book-keeping, statei auditor 

prescribes 6517 

Books and papers, inspection 

of 6317 

admissible as testimony 6508 

examined by tax commission- 
er 6AfOid 

Bounty tax valid n. 8, 6269 

Bridge companies, of, 6296; 6356 

Building associations, of, 6373; 6360 

Buildings and fixtures 6272 

on right of way, how valued, 6380 
Bureau of statistics, assessor's 

duties as to 6337; 6338 

Canal boats, where listed 6319 

lands taxable 6319 

Cancellation of tax certificate, 6484 

Cash book, keeping 6455 

Cattle at pasturage . . .n. 2, 6292 

Certificate, assignee's rights un- 
der n. I, 6464 

assignment void, efi'ect. .n. i, 6464 

cancelled .... 6484 

delay in issuing n. i, 6464 

lost 6484 

sale of lands for taxes, of. . . . 6464 

Chattel mortgage defiaed 6309 

Choses in action, held for taxa- 
tion n. 2, 6297 

City, by what law taxed, 

n. I, 6269; 6521^ 
assessor's office abolished . . .6521^ 
board of equalization abol- 
ished 6521.^ 

treasurer's povv^ers n. 7, 6429 

Clark's grant, rule as to quan- 
tity ^ 6383 

Clerk of circuit court makes 

transcript, when 6322^ 

Coke companies, where assess- 
ed 6295 

Collection of taxes 3258 ; 6425 

overseen by tax commission- 
er < 640i<^/ 

Commutation road tax, 

(R. S. 1S81, § 5066) 

Company, where assessed .... 6294 

when means person 6329 

63 



Taxation (general law) 

{confd) SEC. 

Compromise of taxes 6520a 

certificate of 6^2ob; 6^2od 

city may 6520^ 

limit .652oe 

three years' delinquency . . . .6520c 
Congress may levy, (R. S. 1881, § 8) 

Consignee defined 6312 

when not required to list . . . 6312 
Constitutional requirements as 

to n. 6, 6269 

Contract executed after April 

first n. 2, 6281 

Copies of law distributed 6518 

Co-partnership 06291a 

Co-tenant buying land of ten- 
ancy n. 3, 6466 

Corporation, auditor of state, 

duty to 6359 

assesses when 6437 

bill of discovery against 6437 

collection from 6435 

common schools, taxed for . . 183 
county board of review val- 
ues 6358 

domestic of 6357 

failure to report, penalty, 6359; 6357 
property, where assessed. . . . 6295 

how rated 65(55 

statement of ^3S^ 

suit against for failure to re- 

Poi-t "■- 6357 

when means person ,., 6329 

County auditor, abstracts fur- 
nishes 6407 

arbiter, when acts as 6473 

bank statement, may compel, 6346 
blanks, furnishes ...... .6336; 6377 

building associations, duty 

as to... \ 6373 

certificate of sale, issues 6464 

corporations, duty as to 

schedule of , . . 6358 

crediting county treasurer . . 642S 
deed on tax sale, executes . . . 6480 

delinquent list, makes 6457 

posts 645S 

publishes 645S 

reviews 6513 

duplicate, makes 6417 

abstract to state auditor. . . 6422 
copy to county treasurer. . 6422 

corrects errors in 6421 

certifies to county treas- 
urer 6421 

form of 6417 to 6420 

errors, corrects 6390 

extends taxes on basis of 

equalization 6413 

fee for tax deed 64S0; 64S2 

assignment of tax certifi- 
cate 6464 



978 



Taxation (general law) 

[confd] SEC. 

liability for neglect 6499 

lists of land delivers to assess- 
or 6377 

member of county board of 

review 6397 

notice of meetings of county 

board of review 6397 

omitted property, assesses . . 6416 

pay of n. 6, 6416; n. i, 6417 

for assessor's books , . .n. 2, 6377 
railroad, duty as to ... .6372; 6368 
records proceedings of coun- 
ty board of review 6401 

removal of tax-payer, duty as 

to 6439 

reports blind, insane, etc.,. . . 6337 
settles with county treasurer, 6500 

statement to assessor 6373 

tax sale, attends 6463 

transfers land for taxation, 

6322; 6323 

fees for 6423 

County board of commission- 
ers levy tax 6269 

County board of review, 6397 to 6401 

appeal from 6397 

appointment 6397 

assessment lists, corrects. . . . 6397 

duties 6397; 6399 

equalization by ... .6397; 6399 

power as to . . .6397 ; 6399; 6400 

errors, corrects 6397 

lists, approves 6397 

meetings of 6397; 6398 

notice of 6397 

members of 6397 

oath of 6397 

omitted property, assesses, 

6397; n. 4, 6401C 

organization 6397 

pay of members 6397 

powers 6397, 6399 

to examine witnesses, n. i, 6317 

quorum 6397 

record of proceedings 6401 

reports to from county 

assessor 6397 

sheriff serves notices for, , , . 6397 

valuation, powers as to 6397 

equalizes 6399 

witnesses before 6397 

County boundaries, lew after 

change (R. S. 1881, § 4211) 

County orders received for 
taxes, 

(R. S. 1881, § 5922) ; n. 10, 6422 
County purposes, for, 

(R.S.1881, §§5753, 5754), 6269 

limit of (R. S. 1881, § 5819) 

County treasurer, account * 
stated is evidence 6507 



i axation (general law) 

{coyWd) SEC. 

assessment, may make 6456 

bank shares, collects tax on, 6349 

bid by, for state 6432 

bond, suit on 642S, 6506 

cash book, keeps 6455 

chattels, may seiz-e 6429, 6433 

delivering bond for. . .6429, 6430 

sale of 6431, 6432, 6434 

collection for his use 6504 

on execution, for 6509 

corporations, collects from. . 6435 
county revenue, sued for. . . . 6506 
credit, when not entitled to, 6428 
delinquency, not credited 

with 6428 

penalty on = 6428 

return of 6427 

delinquent list, reviews .... 6513 
demand for taxes, makes of. . 64-27 

liability for failing 6428 

evidence vs. accounts stated 

are 6507 

office books are 6508 

fee, when not entitled to. , . . 6519 

for demand 6427 

levy and sale 6434 

fiduciaries, collects from .... 6443 
guaranty to purchaser, must 

give 6465 

liability for neglect .... 6465, 6499 

for not settling 6505 

for not paying 6506 

member of board of review, 6397 
mistakes, corrects 6504 

in payment 6453 

notice to tax-payers 6424 

office hours 6425 

omitted property assesses. . . 6456 
payments to state 6501, 6502 

suit for delay 6503 

railroad tax, collects 6372 

refunding to by county com- 
missioners 6510 

by state 65 1 1 

Avhen not allowed 6520 

reports, monthly, by 6455 

return, concerning person- 
alty 6427 

special 6438 

road-tax paid to 6426 

settlements, semi-annual. . . . 6500 

mistakes in 6504 

suit for not making 6505 

suit against, docket-fee in. . . 6506 

causes for 6503, 6505, 6506 

when not to be brought 6503 

Credits, claim to set-off, n. 8, 9, 6337 
Custodian of property pays, 

6443 to 6445 
Death of owner, administrator 

lists 6283 



979 



Taxation (general law) 

{cont'd) SEC. 

Debts, bank stock, deduction 

from n, 3, 6336 

deduction of n. 2, 6336 

due domiciled person . . .n. i< 6336 

under tax law 1872 n. 6, 6336 

taxable 6273 

when n. 3, 6297 ; n. 2, 629S 

Decedent's property, subject to, 

6290, 6445 

cities not to tax, when 3264 

payments on. .(R. S. 1881, § 2378) 

towns, not to tax 3264, 6333 

Deduction by tax-payers 6333 

verified 6334 

Deed on tax sale 6479 

as evidence 6480 ; n. 2, 6495 

certificate to be cancelled . . . 6484 

city's - n. i, 6479 

co-tenant can not take . .n. 9, 6480 

death of purchaser 6490 

description of realty. ,.,.... 6479 

must be definite n. 2, 6487 

devises, to 6490 

eifect 6479 ; n. 6, 6480 

evidence, is 6480 

effect as n. 17, 6495 

fee for making 6482 

form of 6480 

'may vary 6481 

heirs to 6490 

infant's lands, for n. i, 6467 

laws, under former 6483 

legal disabilities, effect vipon, 

n. I, 6467; n. 2, 6479 

lost certificate, on 6484 

married women's land, for, 

n. I, 6467 
prematurely issued . . . ,n. 10, 6480 
proceedings, when sale void, 6486 
recitals in, effect, 

n. I, 4, 7, 6480; n. 4, 6495 
recording before delivery . . . 6480 

reforming n. 3, 6480 

register of sales 6485 

sale, Avhen invalid 6487 

set aside n. 18, 6497 

security, held as 6302 

town's n. 1 , 6479 

treasurer failing to sign, ef- 
fect n. 2, 6480^ 

Avhen issued 6479 

Definition of tax n. 5, 13, 6269 

Delay not to vitiate assess- 
ments 6514 

Delivery bond 6429 

form 6430 

Delinquent list, county auditor 

makes 6457 

auditor can not print. . . .n. i, 6458 

contents 6457; n. 2, 3, 6458 

copy of, posting , , , , , 6458 



Taxation (general law) 

{confd) SEC. 

publication 6458 

in Sunday newspapers, 

n. 7, 6458 

notice of sale 6458 

omitting property from 6513 

pay for publishing, .n. 4 to 6, 6458 
Delinquents, removal to an- '■ 

other county 643S 

county auditor certifies as to, 6440 

entry on duplicate as to 6440 

fee for collecting 6442 

payment by, before sale .... 6454 

treasurer collects fees ^44^ 

Delinquent tax, annual review 

of 6513 

collection by prosecuting at- 
torney 6491, 6492 

payment at any time 6454 

when becomes n. 4, 6426 

Delivery bond, county treas- 
urer takes 6429 

Demand, of delinquents 6427 

penalty on treasurer for fail- 
ure to m.ake 6428 

Description, of land, sufficiency, 
637S, 6383, 6325, and 

n. I to 3,6325 

in deed n. 2, 6487 

on return -book 6385 

personalty, of 6327 

Direct taxes apportioned, 

(R. S. 18S1, § 2) 

congres?, by . . . .(R. S. 18S1, § 9) 

Division by township line .... 6324 

Double assessment n. 10, 6459 

Dogs, assessing. . . .6329^; n. 7, 6269 

act of 1881 repealed 6329/ 

assessor liable to fine, when, 6329c 
claim for damages to sheep, 

6329//, 6329^7 

conflict in laws n. i, 6329a 

fund, how used , 6329^,'- 

custodian of 6329^ 

distribution of ......... . .6329/ 

paid to township trustee. .65091? 

use of 6509a 

grand jury investigates 6329^^ 

harboring unregistered dog, 6329;/ 

injuring 6329/", 6329/7/ 

keeping unregistered dog. . .6329-v 

killing 6329/, 6329W 

oath of assessed person . . . .6329^/ 

payment of losses 6329/ 

rate of taxation 6329/> 

resisting 6329 {• 

"runabout" dog 6329/ 

killing 6329/ 

schools, gets surplus revenue 

from 6329/ 

See Schools, 
sheep-killing dog, , , , , ,63::9<.' 



Taxation (general law) 

{confd) SEC. 

stealing 6329/" 

suits for payment of sheep 

killed , n. 2, 6329/ 

township treasurer lists, 

6329^; 6329^> 
Duplicate, abstract of sent \.o 

state auditor 6423 

adding up 6421 

authority under, 

n. I, 6427 ; n. 6, 6429 

certifying to n. 9, 6422 

defined n. 9, 6422 

delivery to treasurer 6422 

failure to make on time,n. i, 6423 
description of land upon .... 6377 
division of county, 

n. 10, 6422; (R. S. 1881, § 4211) 

errors in, correcting 6421 

estimates on 6418 

execution serves as n. 7, 6422 

exhibit to pleading, is not, 

n. 6, 6422 

how made 6417 ; 6418 

incomplete, eifect n. 8, 6422 

installments, how arranged. . 6419 

presumption as to n. 3, 6417 

restoration of destroyed, 

(R. S. 1881, § 1263) 
payments on (R. S. 1881, § 1264) 
Eating-house, where listed. . . . 6294 
Edvxcational institute, exemp- 
tion from cl. 5, 6276 

Embezzlement of taxes, 

(R. S. 18S1, § 1951) 

Engines defined 6315 

Equality of assessmentrequired, 

193; 6269 
Equalization, board of, abolish- 
ed in city 6521(7 

Errors, auditor corrects . .6390; 6421 

assessor 6388 

city and town clerk . . . .n. i, 6421 
Estate, levy on property of, n. 2, 6445 

who pays n. 3, 6445 

Evasion of interrogatories .... 6335 
Evidence, stated account /r/;;za 

facie 6507 

books and papers is 6508 

Executors must pay 6443 

cities not to tax, when. .3264, 6333 

must list property 6282 

re-imbursed 6444 

sale of property of 6445 

towns not to tax, when. .3264, 6333 
Exemptions, acres, number of, 

n. 5, 6276 

bequest to college 6278(7 

cemeteries, of 6276 

charitable institutions, of, 

6276; 627S 
churches, of n. i. 6276 



Taxation (general law) 

[confd) SEC. 

pews, of 6276 

city property, of 6276 

college property 6276 

common school property . . . . 6276 
constitutional limitation, of, 193 

county property, of 6276 

debtors (of), tax not aifected, 

(R. S. 1881, § 717) 

educational institutions, of. . 6276 

endowment funds ..6277(7; 6276 

interest, when not 6304 

exceptions from 6277 

government property, of 6276 

greenbacks n. 9, 6276 

how statute construed, .n. 3, 6276 
Institution construed . . . .n.4, 6276 

libraries, public, of 3808 

stock of 3810 

literary institutions, of 6276 

manual labor school, of .... 6276 

masonic building n. 10, 6276 

Miami Indians, of. . . .62'jSb; 62'jSc 
national bank notes . . . .n. 9, 6276 

national bonds, of n. 9, 6276 

parsonage, of n. 2, 6276 

poor, from poll tax, 

(R. S. 18S1, § 5808) 
road-tax, from (R. S. 1881, § 5066) 

power to make n. 8, 6276 

proceeds of realty, Avhen not, 6300 

school lands 6276 

scientific institutions, of, 6276; 6278 
state board of agriculture, of 

n. II, 6276 

town property, of 6276 

township property, of 6276 

unmarried females. . . ,. .n. 6, 6276 
United States property of. . 6276 
Exports congress can not tax, 

(R. S. 1881, § 9) 

Express companies, of 6352 

Extinguishment of public debt, 

(R. S. 1881, § 194) 
False list given, penalty, 

(R. S. 1881, §2150); 6339; 

6337«/ 652x0:; 6521^ 
constitutionality of statute, 

n. 2, 6339 

indictment n. 1,3, 6339 

False valuation, penalty, 

(R. S. 1881, § 2150) 
Fees, auditor's for tax deed, 

6480; 6482 
statute of limitations, as to, 

n. 3, 6504 
treasurer's for levy and sale . 6434 

Ferries, of 6294 

reports of to assessor 6356 

penalty for failure to make, 6356 
Fiduciaries must list and pay 

tax 6443 ; 6298(7 



Taxation (general law) 

{confd) SEC. 

re-imbursement 6444 

sale of property 6445 

Firm taxes, collection n, i, 6447 

-when means person 6329 

Fixtures, of 6272 

Foreclosure of tax lien 6491 

Foreign bridge companies, of. . 6356 

ferry companies, of 6356 

insurance companies, of ... . 6351 

Forfeited lands 6274 

Forms 6515; 6401^ 

state tax commissioners pre- 
pare 6521^ 

Franchises defined ., 6303 

Fraudulent return 6339 

Free gravel roads, validity of, 

n. 10, 6269 
French's grant, description of 

land in 6383 

Gas companies, of 6295 

Government lands, of 6319 

Goods and chattels 6272 

Gravel road companies, of, 

6296; 6357 

Greenbacks. 6331; n. 9, 6276 

Guardians, of 6330; 6443 

cities not to tax, when . .3264, 6333 

payment of 6443 

re-imbursement 6444 

sale of property n, i , 6445 

towns not to tax, when. .3264, 6333 

where taxed 6290 

Hogs packed for shipment, n. 2, 6292 

Hotels, of 6294 

Hydraulic companies, of 6295 

Idiots enumerated . „ 6337 

[llegal tax injoined n, 9, 11, 6269 

good in part n. 3, 4, 6422 

Improvements destroyed, re- 
bate 6379 

how valued 6379 

redem.ption, in case of 6477 

Indians, lands of, 

6275; 6272; 6278*5; 6278c 
decisions concerning. . . .n. 3, 6272 
Injoining, collection of when 
illegal, 
n. 11,6269; n. 2 to 4, 6422 ; 

n. 10, 6429; n. I, 6430 

tender n. 4, 6479 

when plenty of personalty, 

n. 9, 6495 

Insane enumerated 6337 

Inspection of books and papers, 6317 
Installments, when due ...... 6426 

Instructions by state auditor . . 6515 

Insurance companies, of 6351 

constitutionality of laws con- 
cerning n. 2, 6351; n.i, 6352 

city court sue for, 

n. 2, 6351; n.2, 6352 



Taxation (general law) 

{confd) SEC. 

foreign companies 635 1^ 

penalty for failure to pay . . . 6351 

rate of 635irt; 6351 

reports of 6351 

retaliatory law 6351a 

where listed 6294 

who lists n. I, 6351 

Interest on exempted funds . . . 6304 
compound not allowed, .n. i, 6422 
not collectible on taxes, n. 6, 6422 

redemption, rate 6466 

when ceases on tax sale 6466 

Interrogatories to tax-payer . . 6331 

refusing to answer ^341 

sworn to 6335 

Lands, defined 6272 

reserved 6275 

rules as to quantity. 6383 

sold by state 6274 

surveying 6383 

valuation of , 6379 

Leasehold defined 631S 

Legalization of tax sale of 

school lands 6519 

Levy, different kinds, .n.2 to 3, 6269 
mandate to compel . . . .n. 12, 6269 
state tax commissioners de- 
termine 6401 rf" 

when and how made 6269 

by city n. 3, 6401c 

Library tax, cities may levy, 

3804; 3815 

township trustee may levy . . 3805 

Lien, accrued taxes continued, 6521 

all property liable for 6447 

attaches when n. 7, 6422 

avoiding, tender n. 14, 6497 

bankruptcy does not divert, 

n. 3, 6429 
building association stock, on, 6373 
complaint to enforce, 

n. 2 to 6, 6496 

answer n. 16, 17, 6497 

county treasurer paying by 

mistake, has 6453 

deed void, effect n. 12, 6497 

destruction of by sale or 

transfer 6446; 6447 

entireties, land held by, n. 2, 6446 

existing, saved " 65 1 2 

foreclosure, 

n. I, 6464; 6491 ; n. 5 to 10. 6497 
holder may pay and enforce, 

n. I, 2, 6451 
when must take notice, 

n. 20, 6497 
national bank shares, on. , . . 6348 

occupant, when has *^\>-3 

payment, partial, effect, n. 2, '-H4'^ 

on part of realty 6449 

perpetual n, i, 6446 



982 



Taxation (general law) 

{confd) SEC. 

personalty (of) is on realty, 

n. I, 6447; n. I, 6448 
poll tax, of, . .n. I, 6446; n, i, 6447 
priorities of, 

n. 2, 3, 6446; n. I, 6447 

railroad, on 6372^ 

sale or transfer of property, 

effect 6446; 6447 

school mortgage (of) superi- 
or to n. 3, 6479 

statute of limitations, . .n. 13, 6497 
superior to execution . . .n. 2, 6427 

judgment n. 7, 6496 

tax (of) perpetual 6446 

taxes dropped, does not di- 
vest n.7, 6432 

transferred when 648S 

treasurer paying by mistake, 

has lien 6453 

Avhen attaches 6446 ; 6447 

Avho enforces n. 4, 6497 

Lists of lands, assessor gets . . . 6377 
given to land -owner by as- 
sessor 6378 

how prepared 6378 

land-owner's duty as to 6378 

List of personalty, owner makes, 

6331a 

failure to make 6331)^ 

evidence of what n. 2, 6330 

replevying suit . . ,n. 10, 11, 6336 

Loan associations, of 6373 

Lots and subdivisions, how 

listed 6326 

Machinery defined 6315 

Manufacturers defined 6313 

on Wabash and Erie canal . . 6320 

Married women 6290 

Memorandum delivered to 

land -owner 6387 

Merchants defined 6312 

Miami Indians, exempt from , .6278^ 

action to quiet title 6278c 

Mills on Wabash and Erie canal, 6320 
Mining companies, of. , . .6290 ; 6357 

Mines and quarries, of 6381 

Mistakes, how corrected 6504 

"Money at interest" n.4, 6336 

defined n. i, 6272 

Mortgage, defined 6309; 6310 

inferior to tax lien. . . . .n. 2, 6446 

school fund superior to. .n.3, 6446 

Mortgagee's rights ...... .n. 8, 6495 

^Mortgagor must pay n. 9, 6459 

Mutes enumerated 6337 

Name and address of tax -payer, 6450 

immaterial as to validity 6489 

in whose assessed 6298^ 

sale of land in stranger's, n. i, 6489 
National bank shares, where 
taxed 63S7 ; 6306 



Taxation (general law) 

[cOflfd) SEC. 

Negligence of county officers. . 6499 
New county, not to affect, 

(R. S. 1881, § 4226) 

New trial as of right n. 6, 6296 

Non-resident, property of, n. i, 6292 

bank-shares of taxed 6307 

purchaser at tax sale must 

file bond 6459 

Notes, held for collection, 

n. 3,6271; n. 2; 6297 

in other states n. i , 6330 

Notice of appraisement of 

lands 637S 

assessment of omitted prop- 
erty 6416 

failure to give, effect, 

n. 6, 6429; n. I, 6424; n. 10, 6459 
lien-holder must take . .n. 20, 6497 
meeting of county board of 

review of 6387 

sale of personalty of 6431 

to tax-payers 6424 

Nursery stock defined 6301 

Oath, failure to administer, 

penalty 6396 

of assessor to return. . . .6386, 6389 
refusal to take, 

(R. S. 1881, § 2150); 6340 

Occupant must list lands 6323 

paying taxes on lands 6452 

right of action of 6323 

Officer failing to perform his 

duty, penalty 6521^/ 

Official inspection 6317 

Omitted property, assessor's 

duty as to n. i, 6416; 6393 

city or town may assess, n. i, 6456 
constitutionality of law au- 
thorizing n. 6, 640ir 

county auditor assesses 6416 

county board of review as- 
sesses 6397; n. 4, 640ir 

current year n.3, 6416 

how assessed n. 3, 6416 

notice to OAvner of 6397 

revaluing, can not be as, n. 2, 6456 

tax ferrets n.7, 6416 

treasurer assesses 6456 

when must be assessed . .n. 1, 6393 
Opinion on tax law, who gives, 6401!-/ 
Owner on April first liable . . . 6281 

death of 6282 

Palace car companies, of 6355 

Papers and books, inspection 

of 6317 

Partition proceedings, record- 
ed 6322; n. 2, 6322<7 

Partners n. i, 6291(7 

Partnerships defined 631 1 

how listed 631 1 

Pawns defined 6309 



9B3 



Taxation (general law) 

{cont'd) SEC. 

Pawn-brokers defined 6316 

Payment of delinquent before 

"' sale 6454 

cash-book kept of 6455 

illegal tax, recovering back, 

n. 12, 6429 

lien-holder may make 645J 

mistake by treasurer, effect, 

6453, 6504 
monthly report made of ... . 6455 

occupant may make 6452 

part of, effect 644S, 6449 

receipt for 6450 

loss 6450 

tenant may make, of 6452 

time, ^yhen required 6426 

void currency, in n. 2, 6426 

Perjury n. 5, 6401c; n. i, 6317 

Penalty, amount 6426 

accrued, continued in force. . 6521 
failure to administer oath. . . 6396 

to list lands 6378 

false statement 6339 

leyy, failure to make, effect 

on n. 3, 6426 

part of tax n. 5, 6426 

refusal to give evidence 6341 

town's liability for 6428 

when attaches 6426 

Person defined 6329 

Personalty, blanks for listing, 

6330, 6336 
agent or attorney must list, 

6287, 6297 
corporations, of . . .6289, 6291, 6294 

defined 6272 

description on tax-books. . . . 6327 

destroyed, rebate for 6279 

doubts as to, how settled 6399 

equalization of 6397 to 6399 

executor or administrator 

shall list 6290 

farming tools, in cities 3261 

in towns 3261 

iji transitu 6293 

levy and sale of .... . .6429 to 6434 

listing, manner of 6330 to 6342 

time of 6280 

when listed 6298a, 6290 

Avhere listed . .6286, 6290 to 6296 

who shall list .6290, 6282 

non -residents cl. 4, 6290 

not in existence April ist, 

n. I, 6280 

person removing, of 6298 

pledged and mortgaged, of. . 6309 

sale of, for taxes 6429 to 6434 

before realtj^ 

n. I, 6433; n. I, 2, 3, 6, 6495 

subject to 6269 to 6271 

tangible, when taxed, 62S0 to 6282 



Taxation (general law) 

{C07lfd) SEC. 

United States land, on 6290 

water-craft 6293 

Place of residence, dispute con- 
cerning 6299 

Plank road companies, of, 6357, 6296 
Plats, entered for taxation .... 6392 

prepared by assessor 6377 

Pledges defined 6309 

Poll tax, 

6269, 6270 (R. S. 1881, § 5090 j 

exemption from n. i. 6270 

lien of n. 2, 6270 

realty liable for n. 2, 6270 

Poor, for support of, 

(R. S. 1S81, § 6099) 
Poor, asylum to build, 

(R. S. 1881, § 6093) 

Pork, packed n. 3, 6292 

Post-ofiice address of tax-payer, 6450 

Power to tax n. 13, 14, 6269 

Prosecuting attorney, duty con- 
cerning false statements . . 6339 

enforces liens of 6491 

docket-fee of 6493 

lien for fees. .n. i, 6503; n. i. 6506 

treasurer sues 6503 

fees n. i, 6503 ; n. i, 6506 

Public lands defined 6319 

Purchaser of land not liable 

for tax n . 8, 6429 

city can not be n. 3, 6432 

enjoining sale n. 6, 6459 

Quadrennial assessments of 

land 6388 

Quarries, valuation of 6381 

Quieting title to lands 6496 

complaint for, 

n. 11,6495; n. 2, 3,6496 
when suit brought for. . .n. i, 6495 

Railroads, of 6360 

aid to n. 8, 6269 

appraisement of 6362 

attorney -general sues 6370 

buildings, where taxed 6363 

city may tax 6365 

county auditor's duties, 6372; 6407 
county treasurer collects. . . . 6372 

depots, where taxed 6363 

errors in corrected by asses- 
sor 638S 

foreign companies n. i, 6360 

how assessed 6410 

inventory to county auditor. 6367 

lien of tax on 6372a 

personalty, where assessed . . 6365 

failure to report ^Zl^ 

who assesses 6371 

realty defined 6366 

where listed 6366 

return to assessor by auditor, 636S 
rolling-stock defined 6364 



984 



Taxation (general law) 

{C07lfd) SEC. 

state tax commissioner asses- 
ses 6371 

report to 6371 

statement by to county audi- 
tor 6361 ; 6367 

to state auditor 6369 

penalty for neglect 6370 

station-houses, where taxed . . 6363 

time of listing 6360 

new companies 6361 

track, how assessed 6296 

how described 6362 

defined n. i, 6362 

turn-outs, where taxed 6363 

valuation on duplicate ...... 6372 

apportionment 6363 

deduction, when 6383 

See Railroad. 

Realty, assessment of. . .6377 to 6390 

defined 6272 

description of 6325 

equalization, correction of 

errors in 63S8 

county board of review, 

duty 6397 

state board of, duty 6406 

exempt, when 6276 

exception 6277 

improvem^ents valued 6384 

destroyed 6391 

in-lots, valuation of 6379 

irregularities not vital 6394 

lists of, from county auditor. 6377 

assessors must procure, of. 6378 

improvements, of 6391 

memorandum to owner 6387 

mines valued 6381 

oath of assessor to return .... 6386 

omitted property added .... 6393 

out-lots valued 6379 

owner called on for list of , . 637S 

notice to 6378 

plats of additions 6392 

preservation of 6377 

townships of 6377 

quadrennial assessment of , . 63S8 

quantity, how fixed 6383 

quarries valued 6381 

return of assessment 6385 

verification of 6386 

sale of 6457 to 6465 

schedules preserved 6395 

title-papers to be shown .... 6378 

unsold for three years 6491 

valuation of 6379 ; 6384 

when owner fails to make, 6378 

Rebate by county auditor 6279 

Receiver must pay taxes 6443 

re-imbursement 6444 

sale of property 6445 



Taxation (general law) 

{C07lfd) SEC. 

Receipt given by county treas- 
urer , 6450 

evidence, as n. i, 6450 

loss of 6450 

mistake given by n. 11, 6429 

Recorder of county, duty in 

partition 6322^ 

"Redemption allowed 6466 

auditor settles fee 6473 

certificate of 6478 

conjoint assessment 6474 

continuance of former rights, 6521 

contribution, when made 6472 

costs of _ 6466 

idiot, by 6467 

improvements effected by. . . 6477 

Infants, by 6467 

Insane, by 6467 

interest, when ceases 6466 

joint assessment 6474 

judgment 6476 

recovery 6475 

memorandum of 6478 

part of, payment for specific, 

6470; 6471 

effect of 6472 

payment apportioned 6469 

penalty 6466 

personalty can not be, 

n. 2, 6469; n. 2, 6521 

priority of judgment 6476 

proportion recovered 6475 

record of 6478 

share of undivided part 6469 

specific part 6470 

of undivided realty 6471 

time of 6466 

undivided interest of. . .646S : 6469 
void, sale, eSect, 

n. I, 6466; n. I, 648S 
Refunding, annexation proceed- 
ings n. 5, 6486 

appeal, concerning 64S7C 

board of county commission- 
ers make .* 6487(3 

complaint to enforce, 

n. 3, 6487^; n. 4, 8, 6486c 

failure of tax lien n,8, 64S7<2 

judgment. efi"ect of as to sale, 

n. 3, 6488 

mandate to compel n. 10, 6486 

omitted' property n. 7, 6487(7 

purchase-money n. 2, 6486 

statute necessary to authorize, 

n. I, 6510; n. I, 6511 

repeal of, eft'ect n. i, 6521 

state to county 651 1 

state's portion 6487^; 6510 

valuation increased, effect, 

n. 6, 6487^ 
when must be made . .n. 6, 9, 6486 



985 



Taxation (general law) 

[confd) SEC. 

shall not be 6520 

wrongfully assessed defined, 

n. 2, 6487(7 
Re-imbursement to fiduciaries, 6444 
Release by auditor from tax ... 6287 
Remoyal bet\yeen April ist and 

June ist 6298 

from county 6438 

auditor's duty and fees, 

6439 to 6442 

collection of 6441 

entry on tax duplicate .... 6440 
treasurer's special return. , 6438 
Rent, tenant paying taxes out 

of 6453 

Repeal of statute, effect on 

taxes n. I, 6521 

Repealing section 6521*^ 

Repleyin,when does not lie, n. 10, 6429 
Reports, monthly, by treasurer, 6455 

Reseryations 6275 

Residence defined n. i, 6271 

Return-book 6385 

of treasurer 6427 

special 6438 

Revaluing, auditor can not, 

n. 2, 6456 

Road companies, of 629,6 

Rolling stock defined, 6364; n. i, 6364 

Sailing boats, of 6293 

Sale of personalty 6429 to 6434 

dem.and for taxes necessary, 

n. 2, 6427 

fees of treasurer 6434 

fiduciaries, property of sold . . 6445 

levy upon for taxes due 6427 

duplicate authorizes. . n. 5, 6422 
for what taxes .... n. 4, 6429, 6433 
on corporation property, 

n. 5, 6429 
when made, 

n. 9, 6429; 6433; n. 2, 6438 

void, when n. i, 6429 

manner of making 6432 

notice of 6431 

purchase by treasurer ., 6432 

surplus 6432 

. Sale of realty 6457 

adjourning sale n, 3, 6459 

adverse possession, effect 

upon n. 5, 8, 6480 

auditor attends 6463 

deputy of may make . .n. 4, 6458 

keeps record of 6463 

certificate of 6464 

assignment of 6464 

fees for 6482 

cit}^ cannot be a purchaser, n. 2,6432 
clerk of sale, county auditor 

is ^H'^S 

demand for personalty, ,n. 2, 6459 



Taxation (general law) 

(confd) SEC. 

former laws J^- I5i 6497 

guaranty by treasurer 6465 

inadequacy of price n. 7, 6458 

injoining n. 6, 8, 10,6458 

invalid, when 6486, 6487 

lien of state transferred, when, 6488 
manner of selling lands. . . . 6459 

more than one tract 6461 

name of owner immaterial . . 6489 
non-resident purchaser files 

bond , 6459 

notice of sale 6458 

part of tract sold 6460 

paj'ment of bids 6462 

failure to make, penalty.. 6462 
possession of land under tax 

deed n. 16, 6495 

private sale once allowed, n.5, 6459 

purchaser's remedy 6465 

record of, kept by auditor . . 6463 
repeal of statute authorizing, 

n. 12, 6495 
re-sale, when bid unpaid. . . . 6462 
setting aside sale, eftect 

n. I, 6486; n, 5, 6495 ; 

n. 8, 10, 6459 
statute strictly const- aed, n. 1,6459 

of limitations n. 13, 6497 

subrogation to tax lien, 

n. I, 6449 ; n. 2, 6451 
town can not be a purchaser, 

n. 2, 6432 
validity, proof of. . . .n. 10, 11, 6495 
warranty, how tax lien efiects, 

n. 14, 6495 

Saloons, of 6294 

Savings associations, of 6373 

banks of 6357 

Schedule, form of 6336 

conflicting with statute, 

effect n.5, 6336 

School lands, when taxable, 

6319^ 4364 

assessment of, legalized 6519 

mortgage lien superior to 

taxes n. 3, 6479 

School purposes, for, 
4460; 4461 ; 4465 to 4471 ; 4474; 6269 
Settlement frima facie evi- 
dence 6507; n. 2, 4, 7, 6500 

mistakes in n. 5, 6, 6500 

refunding b}^ county treasur- 
er 6510 

by state trCc-^surer 65 11 

when county treasurer makes, 6500 
Shares of stock, of, 6308; cl. 3, 6290 

situs for taxation n, 2, 3, 6290 

Sheriff serves notices when .... 6397 

Ships, of 6273 

Sickness, exempts from penaltv. 

6330 : 6342 



986 



Taxation Cgeneral law) 

{confd) SEC. 

Sinking-fund lands 6272 

Sleeping-car companies, of . . . . 6355 
Special return bj treasurer. . . . 6438 

State purposes, for 6269 

Statements of tax-payer 6330 

Statute of limitations, effect, 

n. I, 64S6 

Staves n. i , 6292 

Steamboats, of 6293 

Stock shares, of . . . „ 6272 

defined 6291 

foreign citizen owning, .n. i, 6272 

situs for n. 2, 3, 6290 

when can not be assessed, 

n. I, 6357 

Stock-jobbers defined 6294 

Street railways, of 6296 

Street improvements, not exer- 
cise of taxing power. n. 10, 6269 

Subdivisions, how listed 6326 

Suits, penalty saved 6521 

to collect taxes 6491 

to quiet title 6496 

Survey, when owner must make, 

n. I, 63S3 
Tabular list given to auditor, 

contents 6389 

Tax commissioners (state), ab- 
stract of land assessments 

for 6407 

examination of 6406 

additions, fixes rate of 6408 

aggregate valuation of 6406 

appeals to 6401 /«; 6401? 

assessments equalizes 6406 

bond of 6401 5 

classification of property, . . , 6408 

contempts, punish 6401 ?/« 

counties, how equalizes 6409 

deduction, fixes rates of 6408 

duties of 6401^; 6401;;/; 6406 

expenses of 6401/; 6401 w 

governor's duty limited 6401/ 

members of board 6401a 

meetings of 6401;;? 

duration of 6405 

oath of 640i<^; 6401;/ 

may administer to witness, 

6401;;? 

pay of = 6401/ 

powers of .6401;;? 

printing, for 6401/ 

quorum 6401^; 6405 

railroads, how assessed by.. 6410 

statements of 6371 ; 6407 

rates certified to auditor of 

state 641 2 

record of 6401;? 

reports to general assembly .640i(f 

published; 6414 

secretary 6401/' 



Taxation (general law) 

{confd) SEC. 

duties of 6404 

oath of 6404 

terms of 6401c 

vacancy in, how filled ..... .640i>^ 

visits counties 6401.^ 

witnesses may examine 6401^ 

penalties as to 6401"^ 

Taxes, how extended 6413 

Taxless person, must give affi- 
davit 6328 

Tax title, action to quiet 6496 

decree that owner must pay. 6496 
demand for personalty, .n. 2, 6459 
invalid for v/ant of form, is 

not 6498 

legality presumed 6498 

liability of county officer for 

neglect 6499 

lien of state to holder 6497 

presumptions as to papers. . 6498 

proceedings 6496 

proof to defeat 6495 

purchases from mortgagor, 

n. 2, 6272 

recovery by holder of 6497 

redemption, not allowed,,.. 6497 
rents, who liable for. , , .n. 16, 6495 

rights against lienors 6496 

sale without appraisement. , 6497 
steps necessary to vest in pur- 
chaser n. I. 6480 

subrogation of purchaser, 

n. I, 6449; n. 2, 6451 

suits to quiet title 6496 

tax not invalid, when 6498 

treasurer liable for failure of, 6499 
warranted, title is not by state, 

n. 2, 6432 
city or town does not.n. 15, 6495 

Telegraph companies, of 6353 

Telephone companies, of 6354 

Tenant may pay tax 6452 

contribution between co-ten- 
ants n. I, 6452 

duty to pay tax n. i, 6452 

purchasing, effect as to co- 
tenant n- 7, 6495 

rent for, retains 6452 

Avhen can not purchase, .n. 3, 6466 
Tender of taxes, when neces- 
sary n. 4, 6479 

Time of assessing 6330 ; 6280 

of payment 6426 

Towns, of bank stock by, 

3254 to 3260 

lavs's, by what governed, n. i, 6269 

Township tax . . ,(R. S. 1881, § 5995) 

line dividing farm 6324 

Track of railroad, of 6363 

Transcript for taxation 6322^ 

Transfers of realty 6322, 6423 



I 



98; 



Taxation (general law) 

{co?ifd) SEC. 

auditor enters on duplicate. , 6417 
essential to lien of personalty 

or realty n. i, 6447 

how made n. i, 6281 

Transient persons defined .... 6314 
Transitory propertj' defined . . 6292 
Treasurer of state, foreign ex- 
press companies paj^ to . . . 6352 
foreign insurance companies 

pay to 6351 

receives money from coun- 
ties 6501 , 6502 

sleeping car companies pay 

to 6355 

telegraph companies pay to, 6353 
telephone companies pay to, 6354 

Trustees, of 6290, 6443 

re-imbursement 6444 

sale of property 6445 

Turnpike companies, of 6296 

Uncollected tax, how added. . . 6516 

Undivided realty, of 6321 

Uniform and equal, must be, 

193 ; n. 6, 6269 
system of book-keeping ... . 6517 

University lands, of 6319, 6272 

United States, property of, ex- 
empt cl, I, 6276 

Unsold land, list to prosecuting 

attorney 6491 

suit to enforce lien 6491, 6494 

city a party 6491 

decree, form of 6492 

evidence 6493 

parties to 6491 

town a party , 6491 

sale, and use of proceeds. . 6492 

Valuation, assessor fixes. .6336, 6330 

auditor can not increase, n. 5,6416 

equal, must be 6269, 6399 

final, when i^- 7? 6401c 

how fixed 6384, 6383 

power of assessor in fixing. . 6382 

reduction of, not allowed 6390 

Vessels, of 6272 

Voluntary associations, of ... . 6357 
payment, recovery of taxes 

so paid n. 4, 6487^ 

Wabash and Erie canal de- 
fined 6320 

warehouses on 6320 

Warranty of title ........ .n. 2, 6486 

Water-craft, of , 6293 

Water-works, of 6357, 6295 

Wharf-boats, of 6293 

When chattels listed 6280 

where 6290 

Who liable for taxes n. i, 6323 

Telegraph Company 

Exercise of eminent domain, n. i, 66 



Telegraph company 

{confd) SEC. 

poles in street n. 13, 66 

taxation, of 6353 

Tenant 

Damages, when entitled to, 

n. 7, 3170 
Pays taxes 6452 

Theatres 

City may regulate cl. 15, 3106 

when can not require license 
of cl. 16, 3106 

Timber 

Obstructing street . .cl. 18, n. 3, 3106 

Time 

Fractions of a day «• 5^ 3067 

Tippecanoe battle-ground 

Inclosure with fence 232 

Tolls 

Collecting within city . , .cl. 40, 3106 
Gate in city an obstruction, 

cl. 18, n. 7, 3106 
Torts 

City liable for ofiicers' acts, 

n. I5> 3106; n. 2, 3074 
Town 

Accounts of treasurer examined, 3322 

Addition to, may vacate 3383 

Appointment of officer 33^2 

Appropriation of money 3339 

Association to build 3493 

procedure 3493 to 3501 

Attorney fees, when liable for, 

n- 3, 3327 
Bonds, power to issue, 

n. 3>3343; n. 1,3342 

for market-house 3343 

how sold 3344 

tax to pay 3345 

Borrowing money, when may 

cl. I, n. I, 3333 

Bridges, control over 33^7 

Claims, how allowed 334^ 

Commons, may control 333S 

Contracts, officers can not be 

interested in 330S 

Dagerous materials, power over, 

^^- ji 0000 

Dissolution, town may be 33 1^ 

debts 33 "^8 

election 3318 

notice of election 331^ 

order for election in 33'^ 

petition for 33^-^ 

return 33 ^ ^^ 

statute must be ibllowed, n. i, 331S 

Debts, limited 220 

state can not assume 19S 

Fines, may impose 334^ 

liniit ..'. 3346 



988 



Town) {cont'd) SEC. 

Fire wardens, appoints . .cl. lo, 3333 
Fire companies, organize .cl. 3, 3333 
Fiiel for schools, provides, cl. 17, 3333 
Gas pipes in street, 

n. 5, 3338; 3iio«; 31105 
inhabitants not the town. .n. 5, 3293 
Insuring town property . .cl. 12, 3333 
Judicial notice of location, .n. 7,3292 

Jurisdiction n. i, 3106; n. 2, 3297 

Laws changed or repealed, may 

be n.2, 3106 

License, grants 3322 

receipt of money by m.arshal, 3322 

treasurer grants 33^2 

Lighting streets 3336 

Loans 3342 

limit 3342 

Local self-government . , . .n. 2, 3106 

Meetings of trustees n. 5, 3313 

notice of special 3332 

of voters 3332 

Money how drawn from treas- 
ury 3341 : 3339 

Name includes cities, 

"• 3i 3293; n. I, 156 

changing 33S4 

notice for 33S4 

order for 3384 

petition for, 3384 

Negligence, liable for n. 2, 332S 

Officers, pay of 3330 

bonds of , 3320 

books, turns over 3321 

interest in contract, 

n. 4, 330S; n. 2,3313 
Ordinance for weltare of, may 

adopt cl. 16, 3333 

Plat, may make 3252 

Powers limited 3339i n. 3, 3106 

failure to exercise n. 4, 3106 

over bridges 3367 

streets 3367 

Property of town goes to city, 

T^'- 3> 3036 
President of board signs war- 
rant 3341 

Presumption as to incorpora- 
tion n. 4, 3293 

Public place, may preserve, 

cl. 6, 3333 
Real estate, may purchase, cl. 2, 3333 
Receipts and expenditures, 

iorm 3323 

Records kept by clerk 3324 

Revenue, anticipating 3^59 

Rights and liabilities of, as- 
sumed by city n. 3, 3036 

Seal ~. cl. I, 3333 

Self-government, can not aban- 
don n. 2, 3043 

Sewers, may build 3392 

proceedings 3393 



Town {cont'd) SEC. 

Sidewalks, power over 332S 

Streets, power over 33^8 

Street commissioners, aj^point- 

ment els. 3, 10, 3333 

number els. 3, 10, 3333 

Suits against, process, how 

served n. 5, 3301 

Suits for penalties . .3347; n. 3, 3309 
complaint on ordinance, n. 5, 3347 
costs worked out on street . . 3347 

docket entry 3347 

fines, how enforced 334^ 

how commenced 3347 

imprisonment of offenders . . 3347 

judgm.ent 3347 

payment of judgm.ent 3347 

pleading...'. 3331 

trial 3347 

warrant 3347 

where brought n- 3, 3347 

Surrender of powers n. 4, 3106 

Survev, may make 3252 

lack of, taxes not illegal, n. 6, 3348 
Town within a town, there can 

not be n.4, 3297 

Trustees, how elected n. i, 3308 

accounts, examine 3322 

board of health, acts as 4993 

election 3309, 3311 

meetings n. -^, 3313 

school trustee serving as, 

n. 3> 3313 
term of office 33 11 

Union with city or town 3233 

Vacation, addition may be ... . 3383 

town may be 3379 

proceedings 3380 to 3382 

Wards 3302 

redistricting 3303 

Warrant for arrest 3347 

for taxes 3341 

Water-pipes extended beyond 

limits 31101^ 

Work-house, may use 6237 

Town building- 
Incorporation 3493 to 3497 

when accomplished 3498 

Powers of 3498 

Realty, may hold and sell .... 3499 

trustees, may convey to 350i 

Record of proceedings, to keep, 3500 

copies as evidence 3500 

Township 

State can not assume debts of, 19S 

Traction engine 

Negligence in using bridge for 

crossing stream n. 25, 3161 

Use of street for illegal 3224^ 

penal offense 'X>'^2\d 

whistling 3224c 



989 



Trains sec. 

Town may control, 

(R. S. 1881, § 4020) 

Transcript 

Caption of 3068 

Certificate to 3067, 3068 



3079 
3093 

3084 

3095 
3080 

3079 
3079 
3087 

3043 
3079 



3043 
3094 
3165 



Treasurer (city) 

Accounts, keeps . .'. 

Annual settlement, makes .... 

Assessment by, when 

Bond and oath , 

Bonds, cancels 

reports sale of . . . .•: . . .3118, 

sells 3118; 

Delinquent taxes, collects, 3085, 

Deputies, may have 

Disbursements, keeps accounts 

of 

Duties 3079 to 3094 

concerning loans 31 18 

Election of 

Fees on tax sales 

on precepts 

Levy, m-akes on property, 3085, 3087 

Loans, duty concerning 31 18 

Money of city, keeps at his 

peril n, 2, 3083 

Notice concerning taxes, gives, 3087 

of sale of property for taxes, 

3089, 3091 

Oath 3095 

Orders, cancels 3080 

cancelled orders, delivers to 
clerk 

receives in payment of taxes. 
Omitted property, assesses. . . . 
Pays city orders 

street opening, damages .... 

Receipts, gives for money paid 

him 

accounts of, keeps 

Record of street opening col- 
lections, keeps 3177 



3083 
3080 
3084 
3081 
3183 

3080 
3079 



3092 
3080 
3087 
3083 
3083 
3092 



Redemption from tax sale 
Registry of cancelled orders . . 

Reports delinquent taxes 

in large cities n. i, 

receipts and disbursements. . 
sale of real estate for taxes. . 

sinking fund 3126c 

street opening, collection of 

damages 3178 

Sale of personal property for 

taxes 3085, 3087, 3089, 3090 

real estate for^taxes . . . .3088, 3091 
Settlements, annually makes . . 3093 
Signs statement of city indebt- 
edness 31^0 

Street opening assessment, 

keeps 3177 

tenders damages 31S2 



Treasurer (city) [confd) sue. 

Tax certificate and deeds, 

signs 3094 

collects 30S7 

delinquent, collects 3085, 3087 

Unsold tax lands, duty towards, 3094 

Vacancy 3050 

Warrants, when not to pay, 

3079, 30S1 
when indorses 3081 

Treasurer (county) 

See Taxation (General). 

Treasurer (town) 
Accounts of examined by trus- 
tees 3332 

Bond 3320 

Cost of serving process, collects, 3398 

Clerk may serve as 33oS 

Deputy 3043 

Duties 3322 

Election 3308 

Liability for town funds. . .n. 2, 3322 

Oath 3313 

Owner of money collected, n. 2, 30S3 

Pay 3330 

Premiums on bonds, must ac- 
count for n. 2, 30S3 

Reports, makes "• 3, 3322 

conclusiveness n. 2, 3079 

form 3322 

published 3323 

Settlement 3323 

form 3322 

Tax warrant 3321 

Trees 

See Shade-Trees. 

Trial 

Absence of defendant ... .n. 21, 3066 

Judgment n, i, 2, 3067 

Mayor may hold 3062 

Officer n. i to 7, 3101 

Trustees of towns 

Animals, may restrain 3333 

Trustees, appropriations by. . . 3339 
ashes, regulate disposal of, 3333 

auctions, regulate 3333 

bonds, may issue 3343 

bribery of 2010, 2949, 2051 

bridges, may regulate 33^7 

buildings may remove 33^7 

by-laws, publication of 3333 

cemeteries, may purchase. . . 3333 

claims, when allowed by, 3340, 3341 

numbered and registered, . 3340 

commons, may control 333^ 

dogs, may tax 3333 

drunkenness, may punish. . . 3333 
dwellings, may examine .... 3353 
driving immoderately, may 
punish .... \ ". 3333 



990 



Trustees of towns {coyifd) sec. 

election of, manner of 331 1 

exhibitions may regulate . . . 3333 

fines, may exact or remit. , . . 3346 

fire, aid to extinguish, compel, 3333 

apparatus, provide 3333 

companies may organize. . 3333 

limits, may establish 3335 

Avardens, are 3329 

v/orks, prohibit 3333 

gambling, prohibit, 3333 

^ games, regulate 3333 

gas light, may tax for 3337 

grounds, public, may inclose, 3333 

gunpowder, storage of 3333 

highways, power over 33^7 

houses of ill-fame, regulate. . 3333 

intoxication, punish 3333 

liquor licenses, may grant, 3333 

market-houses, may build. .. . 3333 

markets, may regulate 3333 

money-borrowing restricted, 3342 

nuisances, may abate 3333 

oath of '. 3313 

pay of 3330 

peace and good order pre- 
serve 3333 

peddlers, may regulate 3333 

property, may buy and sell, 3333 

public, may insure 3333 

prostitvxtes, may punish 3333 

right of way, may grant. . , , 5041 

for improving streets 5041 

road-labor tax, enforce 3367 

school-houses, may erect. . . . 3333 

tax for, may levy 3333 

seal, may have 3333 

sidewalks, have charge of. . 3328 
incumbering, prevent .... 3333 
sinking-fund tax, provide. . . 3342 
slaughter-houses, regulate . . 3333 
stove-pipes may regulate . . . 3333 
streams, banks of, regulate. . 3338 
street commissioner, ap- 
point \. 3333 

street improvements, super- 
intend 3328 

streets, have control of, .3333, 3367 

may light 3366 

taxes, lev}^ and collect 3333 

buildings, special for 3345 

term of 331 1 

trees, may plant 3333, 3334 

vacancies in : 3312 

vice and immorality, prevent, 3333 
' wells and pumps, construct, 3333 
wharves and landings, build, 3333 
whistling by engines, regu- 
late 2178 

Turnpike 

Assessing for street improve- 
ment cl. 18, n. 7. 3106 



Turnpike [cont'd') sec! 

City may donate to, 

3152, (R.S.i88i,§ 5099) 
Exercise of eminent domain, 

n. I, 66 
Town may issue bonds to, 

(R. S. i8Si,§5099) 

Union of city and town 

Agreement 3235 

publication 3235 

Citj^ and town may unite 3233 

Conditions 3234 

Debts not affected 3242 

Effect -. 3241 

Elections 3236 

Name 3239; 3240 

Notice of agreement 323S 

Property 3242 

Report of election upon 3238 

Resolution for 3238 

Term.s 3234 

Tickets 3237 

Unwholesome substance 
Removal cl. 22, 3106 

Vacancies in office 

City j udge 3050 

Clerk 3050 

Councilman 3050; 3050*7 

Mayor 3050; 3050a 

President of board of aldermen, 3060 
Term 3050(5 

Vacation of street 

See Street, Vacation. 

Vaccination 

City may require. . .cl. 35, n. 2, 3106 

Vagrants 

City may punish, 

' cl.20, 3106, 3154; n. 4, 3155 

Vehicles 

Council may regulate use of, 

cl. 12, 3106; cl. 38, 3106; 3156 

Venue 

Change of refused by mayor, 

effect o .n. 12, 3062 

Granting 3062 

Venire 

Form 3066 

Verdict 

Form in street opening proceed- 
ings 3180 

Viaducts 

Railroad compelled to build, 

cl. 40, n. 3, 3106; n. 28, 3161 

Vice 

Council prevents cl. 6, 7, 3106 

Town may suppress cl. 6, 3333 



991 



Voters SEC. 

Number in precinct of town . . . 3224 

Qualifications 84 ; 3223 

Special meetings of in town. . . 3332 
See Elections (General). 

Wabash and Erie Canal 

Repairing bridges upon, .cl. 40, 3106 

Wagons 

Loading and unloading in street, 

cl. 18, n. 3, 3106 
Walls 

Dangerous, city not liable for, 

n. 31, 3161 
Partition cl. 41, n. i, 3106 

Wards 

Board of town trustees divide 

city into 3037 

number 3037 

Courts can not judicially notice, 

n- I, 3037 
Mandamus to compel division, 

n. 5, 3037 

New w^ard 3038 

notice of 3038^ 

number in large city 3052 

order for 3038 

ordinance necessary 3038^ 

petition for 3038 

size 3037 

size in large cities 3052; 3053 

Warrant for money 

Action upon city w^arrant. .n.2, 3069 
Embezzlement by clerk. . .n. 5, 3068 

Form in city 3069 

How drawn in town 3349; 3350 

in city . -» 3069 

Mayor signs 3069 

Presiding officer of council 

signs 3079 

Register of in city 3069 

When can not be drawn 3069 

in large city 3123 

Warrant for taxes 

Form , , 3070 

Warrant for arrest 

Arrest upon n, 4, 7, 3076 

Certified to adjoining county, 

n. 22, 3076 

Form 3066 

How directed n. i, 3066 

Penal action requires ... .n. 21, 3066 

Water 

City may procure. . .cl. 35, n. 2, 3106 

Water-course 

Course changed 3167 

vacated 3184 

Water-pipes 

Laid in street 31 10 



Water-power company sec. 

City may aid 3i53 

Water- works (city) 

Appropriation of land. .3266 to 3269 
Artesian Avell, city may use, 

ci. 26, n. 3, 3106 
Assessment of damages for, 

cl. 26, 3106; 3266; 3267 
Attachments, city may regulate, 3280 
Bonds, issuance of, 

3114; 3265; cl. 26, n. 2, 3106 
embezzlement, new may issue, 

31 14; n. 2, 3265; n. 4, 3095 

redemption 3283 

selling 3114; 3265 

tax for 3265 ; 3283 ; 3284 

Commissioners, appointment. . .3266 

duties of 3266; 3267 

oath of 3266 

report from 3267 

appeal from 3269 

Committee of investigation... 3278 

Company may be formed, cl. 26, 3106 

stock may be taken in. .cl.26, 3106 

Contract for 3277; 3281 

bids for 3281 

Contractor's bond 3282 

Defective supply of water, 

cl. 26, n. 9, 3106 

Election for construction 3265 

ballots 3265 

notice of 3265 

order 3265 

petition for 3265 

return of 3265 

Eminent domain, use of powers 

of n.i6, 66 

- Erection, as to 3265 

trustees for 3270 

Erection b}' city. . .cl. 26, 3106; 3265 
Estopped, when abutter is, 

cl. 26, 3106 
General welfare clause author- 
izes n. 6, 3155; n. 10, 3114 

Grade of street changed, 

cl. 26, n. 7, 3106 

Jurisdiction of city 3285 

Legislation, preliminary, 31 14; 3265 

Lien of tax 3284 

Location of cl. 45, 3106 ; 3265 

Monopoly cl. 26, n. S, 3106 

Name 3314 

Negligence in building, 

cl.26, n. 4, 3106; n. I, 3277 

leaking pipes cl. 26, n. 6, 3106 

scaring horses cl. 26, n. 9, 3106 

Ordinance establishing 3270 

Pipes in street, 

n. 12, 66; cl. 26, n. 7, 3106; 31 10 
extended beyond city limits, 31 10/' 

Pollution, prevention of 32S5 

Private, incorporation , .n. i, 5, 3265 



992 



Water-works (city) {confd) sec. 

Protection of 3285 

Public use, water free for 3279 

Regulations, city may adopt, 

cl. 26, n. 6. 3106 
Realty, may purchase . . .cl. 45, 3106 
Stream, diverting. . .cl. 26, n. 3, 3106 
Superintendent's bond, 

cl. 26, n. 3, 3106 

Surplus fund, application 3274 

Tender of damages, 3268; n. i, 3272 
Town may build . . .3265 ; cl. 3, 3333 

Trustees for, as to 3270 to 3282 

abolished in small cities . , . .3270a 

bond, failure, to fix n. i, 3271 

by-laws and rules, may make, 3272 

compensation 3271 

council acts as, in small city, 3270^ 
duties can not be prescribed 

by council n. i, 3271 

election of 3270 

investigating, council may, 

n. I, 3278 
money, how deposits . .3275 ; 3276 

oath ." 3313 

president 3313 

reports from 3^75 

suit, may bring 3314 

terms 3270 

vacancies in office , 3312 

Vote upon construction 3265 

Water-rents 3273 

collection 3271 

Water-works order n. i, 3276 

Water-works canal 

Use of for water-works, 

42030 to 4203.? 

Water-works companies 

Articles of association 4200 

Bonds, when may issue 4202 

holders, when may vote .... 4203 

Debts, may assume 4201 

Franchises of .... » 4201 

Money, when may borrow .... 4202 

Mortgages, may give 4202 

Personalty, where taxed 6357 

Private incorporation . .n. i, 5, 3265 

Property, what may hold 4201 

Re-capitalization, privileges of, 

4201 ; 4200 

release of old subscribers . . . 4201 
Sinking fund, may establish. . , 4203 
Stock, may issue 4203 

city may sell cl.26, n.2, 3106 

preferred 4203 

Water-works (town) 

Water-works, may construct . . 3265 

Bonds, may sell for 3265 

tax, to pay 3283 

lien of 3284 

Condemnation for 3266 



Water-works (town) [coufd) sec. 

assessment of damages 3267 

appeal from 3269 

Trustees of, election of 3270 

bond of 3271 

contracts by 3277, 3282 

notice of 3281 

funds, how kept by 3275, 3276 

application of 3274 

investigation of 3278 

manage the«works 3271 

officers, appoint and pay 3271 

pay of 3271 

regulations, may make 3272 

rents, assess 3273 

reports by 3275 

Water free for public use 3279 

Water-works companies 
in towns 

Articles of association, 4202(", 4202^ 

Bonds, may issue 4203// 

Canals, may use 4203/t 

Central canal may be used. . . .4203^ 

Condemnation proceedings . . .4203c 

amendment of proceedings, 42032 

appraisers appointed, 4303c, 4203^ 

appropriation 4203^ 

nevv^ proceedings 4203/ 

Survey cl. i, 4203a 

unknown owners 4203^ 

Consent of town necessary. . . .4203?" 

Donations to , . .cl. 2, 3, 4203a 

Existing company may build, 4203/ 

Highway, use of cl. 5, 4203a 

Interference with work 4203^ 

Powers 4203a 

Purchase cl. 3, 4203a 

Railroad, use of right of vv-ay, 

cl-"^5' 4203^ 

Repairing cl. 6, 4203a 

Right of way, how acquired. . .4203c 

Route, changing cl. 8, 420ga 

Site , cl. 4, 4203a 

Surveys for cl. i, 4203a 

Unknown owners 42036 

When may be built 4203a 

Weigliing 

City may regulate cl. 31, 3106 

salary of master cl. 31, 3106 

spring scales, use of may pro- 
hibit cl. 31', n. I, 3106 

Welfare of city 

Council must guard cl. 4, 3106 

Welfare clause 

General clause for city 3^55 

for town cl. 16, 3333 

Weils 

Abandonment of n. 3, 3107 

Appropriation of, when city 

may make n. 3, 3170 



993 



Wells {confd) SEC. 

Artesian, city may use, 

cl. 26, n. 23, 3106 

Town may construct cl. 3, 3333 

regulate -cl. 3, 3333 

Wharves in city 

City may build cl. 34, 3106 

Ferriage, charge for vise of, 

cl. 34, n. 2, 3106 

Ferry, using 3103 

Powers of city over, cl. 34, n. 2, 3106 

Rates for use may fix cl. 34, 3106 

lien on boats, for, cl. 34, n. 2, 3106 

Repairing cl. 34, n. 2, 3106 

Runners at, may regulate, cl.37, 3106 
Sewers, assessment of wharf 

for cost of cl. 43, n. 19, 3106 

Wharves in towns 

Building, may cl, 18, 3333 

Controlling, may 333^ 

Women 

Imprisonment in house for 

friendless women 6240 

School office, may hold 4540 

Wood 

Measuring, city maj' regulate, 

cl. 31, 3106 
Throwing in street, cl. 18, n. 2, 3106 
Sale of, city may regulate, cl. 31, 3106 

Wooden buildings 

Construction, ciiy may pre- 
vent cl. 32, 3106 

may regulate n. i, 4, 3155 

town may prohibit 3335 

Removal of by city cl. 32, 3106 



Work-house sec. 

Cities may send to 6232 

County commissioners may es- 
tablish 6227 

regulations may make 6232 

report of superintendent to, 6233 
County physician to visit .... 6236 

Discipline enforced 6236 

Expenses, how paid 6233 

Grand jury must inspect 6234 

Jailer must transfer to. . . .6230, 6237 
Justice of the peace may com- 
mit to 6229 

Mittimus to 3067, 6229 

Municipal, use of 6237 

Notice of completion ... 6229 

Prisoners, punishment of. .... 6238 

credit on fine for work 6239 

hard labor, put to 6231 

highways, worked on 6231 

punishment 6238 

refusing to work, penalty. . . 6238 
transfer of, from jail. . 6230, 6237 

Receipts of money 6233 

Regulations by county com- 
missioners , 6230, 6231 

Sentence, to 6229 

remission, of 6229 

Sheriff must transfer 6230, 6237- 

Superintendent of 6228. 

arrests may make 6236 

bond of 6236 

duties of : 6236 

reports to commissioners . . . 6233 
Towns may send to. .6232, n. 9, 3347 

Transfer from jail 6230, 6237 

Visitation of 6235 

Working on street 

Rate allowed prisoner for, 

3067,6231 
Town may require 33^7 



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